U.S. Supreme Court

White student denied admission to University of Texas gets a chance to prove her case


A white plaintiff challenging the University of Texas’ use of race as a factor in admissions will get a chance to prove her case as a result of a decision by the U.S. Supreme Court on Monday.

In a 7-1 opinion (PDF), the court said a federal appeals court was wrong to uphold summary judgment for the university. The majority opinion by Justice Anthony M. Kennedy said the New Orleans-based 5th U.S. Circuit Court of Appeals had failed to apply strict scrutiny in evaluating the case.

David Gans, civil rights director of the Constitutional Accountability Center, summarized the case this way in a press release: “The court backed away from the edge of the cliff today. The court surprised most court watchers by issuing an extremely narrow decision. The justices did not decide the constitutionality of the university’s use of race in admissions, the big question at the heart of this case.”

The plaintiff Abigail Fisher claimed her equal protection rights were violated after she was denied admission to the university. The University of Texas determines the bulk of admissions by class rank. The remaining spots however, are filled based on a personal achievement score that includes race as a factor.

Kennedy said the university has to prove that the university’s program to attain diversity is narrowly tailored to meet that goal. The program must ensure that each applicant is evaluated as an individual, Kennedy said, and the university must show it is necessary to use race to achieve the educational benefits of diversity. “The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity,” he wrote.

Two concurring justices, Antonin Scalia and Clarence Thomas, noted that the petitioner had not asked the court to overrule Grutter v. Bollinger, which held that the University of Michigan Law School could use race as one factor in admissions decisions. SCOTUSblog sums up the case this way: “The majority seems to reaffirm that diversity is a compelling interest if only because that rule was not challenged by the plaintiffs in the case.”

Thomas said he would have overruled Grutter. “Slaveholders argued that slavery was a ‘positive good’ that civilized blacks and elevated them in every dimension of life,” Thomas wrote. “A century later, segregationists similarly asserted that segregation was not only benign, but good for black students. …

“Following in these inauspicious footsteps, the University would have us believe that its discrimination is likewise benign. I think the lesson of history is clear enough: Racial discrimination is never benign.”

Thomas said the university’s “discriminatory admissions program” harms whites and Asians denied admission, and harms minorities who are at a disadvantage because of lower grades and test scores.

Justice Elena Kagan did not participate in the case. Justice Ruth Bader Ginsburg dissented.

The U.S. Supreme Court has already agreed to hear a related case challenging Michigan’s voter-approved ban on affirmative action at colleges and universities. SCOTUSblog has previously said the case, Schuette v. Coalition to Defend Affirmative Action, could “produce a far more sweeping decision” than the Fisher case, Fisher v. University of Texas at Austin.

Prior coverage:

ABAJournal.com: “In Affirmative Action Arguments, Roberts Presses for Answers on Diversity ‘Critical Mass’ “

ABAJournal.com: “ABA Amicus Brief Supports Using Race as a Factor in College Admissions”

ABAJournal.com: “Chemerinsky: Supreme Court Revisits Affirmative Action in Universities”

ABA Journal: “Eyes of US Are Upon Texas: Affirmative Action Case Kicks Off the Supreme Court’s 2012 Term”

ABAJournal.com: “Supreme Court to Hear Challenge in ‘Potentially Momentous’ Case Testing College Affirmative Action”

ABAJournal.com: “Law Prof’s Amicus Brief in Potential Supreme Court Case Says Preferences Hurt Minorities”

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