Supreme Court Report

Eyes of US Are Upon Texas: Affirmative Action Case Kicks Off the Supreme Court's 2012 Term

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A statue of George Washington stands in front of the University of Texas bell tower and administration building in Austin. Photo by AP Photo/Robert E. Klein.

Allan Bakke. Barbara Grutter. Abigail Fisher? Will the 22-year-old be the latest student to become synonymous with a landmark U.S. Supreme Court decision on the use of race in higher education?

More important, will she be the last? Are the justices prepared to use Fisher’s challenge to the admissions program at the University of Texas at Austin to rule race preferences unconstitutional once and for all? Opponents of such race-based programs have their hopes up, especially after the high court took Fisher’s case in the face of a number of jurisdictional hurdles.

In Fisher v. University of Texas at Austin, to be argued Oct. 10, eight justices will participate in deciding whether the university’s system violates the 14th Amendment’s equal protection clause. Justice Elena Kagan has recused herself, leaving the potential for a 4-4 tie. That would affirm, without setting a national precedent, a decision by the 5th U.S. Circuit Court of Appeals at New Orleans that upheld the Texas system under the Supreme Court’s precedents.

One of those is Regents of the University of California v. Bakke, the 1978 decision in which Justice Lewis F. Powell Jr.’s controlling opinion approved a university’s consideration of race to further a compelling interest in a diverse student body. (Bakke, a white applicant denied admission to the medical school at the university’s Davis campus, was ordered admitted by the high court.)

In 2003, in Grutter v. Bollinger, the high court upheld the University of Michigan Law School’s holistic, individualized consideration of race in admissions. Grutter, a white woman who applied to the law school at age 43, was never admitted.

A broad decision in favor of Fisher could mean the high court would overrule the Grutter and Bakke line of cases and bar the consideration of race in admissions. A more narrow ruling could say that the peculiar Texas admissions system does not meet Grutter’s requirements. (Or that it does, of course.)

“This case is not a frontal attack on Grutter,” says Edward Blum, the founder and director of the Project on Fair Representation, the Washington, D.C., nonprofit behind Fisher’s case. “We’ve made very clear in our briefs that it is not necessary to overturn Grutter to forbid Texas from going forward.”


When the university filed its brief, President William Powers Jr. said that “having a diverse campus so that we’re training and educating a diverse group of leaders is critical for our state. … We have a narrowly tailored admissions approach that makes modest use of ethnicity in a holistic review that looks at a lot of characteristics that make for good students and good leaders for the future.”

The university declined an interview request. Fisher is also declining interviews, according to Blum. Fisher graduated this year from Louisiana State University in Baton Rouge with a degree in finance. “She’s a well-adjusted 22-year-old who is not an advocate for a political philosophy or a legal ideology,” Blum says.

The university’s admissions program is intertwined with the state’s Top Ten Percent program, which guarantees acceptance to any state-funded university to Texas high school students who finish in the top decile of their classes by grade-point average. Top Ten Percent is a product of Hopwood v. Texas, the 5th Circuit decision that barred the university from taking race into account in admissions.

After the Supreme Court’s Grutter decision reaffirmed that colleges could use race under the proper circumstances, UT reinstated the consideration of race in admissions in 2004 after a yearlong review. The university was worried that even with the aid of the Top Ten Percent law, which brought in Hispanics from the Rio Grande Valley and African-Americans from Dallas and Houston, its overall proportions of those “underrepresented” groups remained stagnant, with around 4.5 percent black students and 16.9 percent Hispanic in the fall 2004 freshman class.

Race was added as a factor to UT’s “personal achievement index,” an amalgam of leadership qualities, extracurricular activities, work and service experience, and special circumstances. The PAI and a separate “academic index” are used on a matrix to grant admission to applicants who don’t get in through the Top Ten Percent law. The proportion accepted through the latter is capped at 75 percent; the holistic review process applies to about one-fourth of the class.


The university stresses that its plan sets no numerical goals or quotas based on race. As a federal district judge put it, “UT considers race in its admissions process a factor of a factor of a factor.”

The University of Texas says in its brief that “it is impossible to tell whether an applicant’s race was a tipping factor for any given admit” under its system. But it does not dispute that race can make the dif-ference in a student’s application.

Blum asserts that “but for the fact that Abigail Fisher is white, she would have been admitted” to UT when she applied for the freshman entering class of 2008. As a high school senior, Fisher just missed finishing in the top 10 percent of her class. “Although [Fisher’s] academic credentials exceeded those of many admitted minority candidates, UT denied her application.”

The university says in its brief that there was “stiff competition” for the freshman class in 2008, and Fisher’s academic index score was “relatively low” and her personal achievement index was below the top score.

The university further says that for a provisional summer admissions program, for which Fisher was also denied, there were a few minority applicants with higher combined index scores admitted, but there were also 168 black or Hispanic applicants with identical or higher combined scores than Fisher’s who were denied.

Even if Fisher had received the top PAI score, she would have been denied admission, the university maintains.


On the broader issues, the university stresses its belief that Top Ten Percent, imposed by state lawmakers, hinders its academic selectivity and undermines its efforts to achieve diversity “in the broad sense.” By that, it means in part diversity within minority groups.

Black and Hispanic students admitted through the holistic program are more likely than their counterparts from the Top Ten Percent plan to have attended integrated high schools, are less likely to be the first in their families to attend college, and have higher SAT scores.

These students, such as “the African-American or Hispanic child of successful professionals in Dallas” have “great potential for serving as a ‘bridge’ in promoting cross-racial understanding, as well as in breaking down racial stereotypes,” the university’s brief says.

The university’s brief seems aimed squarely at Justice Anthony M. Kennedy, who was a dissenter in Grutter but is in the center of the court on this issue. Kennedy and his views are mentioned 20 times in the university’s brief.

“UT’s policy lacks the features that Justice Kennedy found disqualifying in Grutter: It is undisputed that UT has not established any race-based target; race is not assigned any automatic value; and the racial or ethnic composition of admits is not monitored during the admissions cycle,” the university says.

Fisher’s brief, which also mentions Kennedy 20 times, argues that the university is engaged in “racial balancing” based on the demographic proportions of blacks and Hispanics in the Texas population, something that is not a constitutional rationale for a race-conscious admissions program.

One of Fisher’s targets is the university’s stated goal of achieving classroom diversity, which it has defined as having at least two African-Americans, two Hispanics and two Asian-Americans in each classroom.

“Realistically, UT has created a classroom diversity metric that will function as an endless justification for using racial preference in admissions,” Fisher’s brief says.

Fisher has a relatively small band of amici on her side, mostly the same conservative-leaning groups that have been fighting race preferences for years.

The university, however, has an onslaught of support that includes President Barack Obama’s administration, which stressed the national security implications of having a diverse pipeline of leaders. Other amici include the American Bar Association; retired military leaders, whose amicus brief in the Grutter case was considered influential for opinion author Justice Sandra Day O’Connor; a majority of Fortune 100 companies; and virtually every segment of U.S. higher education.

Richard Sander, an economist and law professor at the University of California at Los Angeles who has studied affirmative action, says Grutter’s embrace of holistic, individualized admissions has paradoxically led to larger and more mechanical preferences. Nine years after O’Connor said in her Grutter opinion that race preferences should be phased out within 25 years, there is little evidence that universities are weaning themselves from such programs.

“The drift of policy is unmistakably toward using large racial preferences for many decades, or even centuries, in pursuit of proportional representation of every racial and ethnic group at every higher education institution,” Sander wrote in an amicus brief.


Another Lively Court Term

So how does the U.S. Supreme Court top itself?

The new session that begins Oct. 1 may seem like a letdown after a term with major decisions on immigration and health care. And then there was all that last-day drama surrounding the Affordable Care Act decision, with blanket news coverage, purported leaks, and speculation about switched votes and seething dissenters. Do the justices return from their summer travels and pick up as if nothing unusual occurred? Yes, say some high court experts.

“The court is a family,” says Susan Low Bloch, a professor at Georgetown University Law Center who teaches a Supreme Court seminar. “The justices are basically married together. Whatever strains there were at the end of the health care case will be fine by the start of the new term.”

Besides, the new term is shaping up as no slouch itself. There is the major test of affirmative action in higher education in Fisher v. University of Texas at Austin. There is a case that will interpret whether a 1789 act of Congress allows U.S. courts to weigh legal violations on foreign soil. And a pair of cases examine whether sniffs by drug-detection dogs are searches under the Fourth Amendment. Meanwhile, the justices could yet add major cases on gay marriage and the Voting Rights Act.

The new term “really has the potential to be a worthy sequel to the blockbuster term we had” in 2011-12, says John P. Elwood, a partner at Vinson & Elkins in Washington, D.C., and a frequent contributor to SCOTUSblog. “There is a lot of good stuff that is either on the docket or on the horizon.”

Here are some of the top cases (in addition to Fisher) already granted review:

Alien Tort StatuteKiobel v. Royal Dutch Petroleum Co.—The court heard arguments last spring on whether a corporation may be held liable under the 18th century law for its alleged complicity in a foreign government’s torture of its own citizens. The justices ordered the case reargued with the additional question of whether the statute allowed U.S. courts to hear suits about violations of international law when the violations occurred on foreign soil.

Dog searchesFlorida v. Jardines and Florida v. Harris—In two cases, the court will examine whether an alert by a narcotics-detection dog at the front door of a suspected drug “grow house” is a search under the Fourth Amendment, and whether an alert outside a vehicle is sufficient to establish probable cause.

Class actionsComcast Corp. v. Behrend—In a follow-up to its 2011 ruling in Wal-Mart Stores Inc. v. Dukes, which made it more difficult to certify class actions, the court will take up a case in which the cable-TV provider Comcast is challenging whether a federal district court considered enough evidence before certifying a class of customers allegedly harmed by cable-market swaps.


As in any term, the court will continue to fill out its docket for several months. Among the big cases that could join that list are these:

Gay marriageU.S. Department of Health and Human Services v. Massachusetts and other cases—The hot-button issue has reached the high court this term in several appeals, including one by supporters of California’s Proposition 8, which prohibited gay marriage but was struck down on narrow grounds by the 9th U.S. Circuit Court of Appeals at San Francisco, and several involving the federal Defense of Marriage Act. One good bet for a grant is a case in which both President Barack Obama’s administration and the Bipartisan Legal Advisory Group, made up of House members who defend the law, are urging the court to review a decision by the 1st Circuit at Boston that struck down the law’s definition of marriage (as barring same-sex marriages) as a violation of the equal protection clause.

Voting Rights ActNix v. Holder and Shelby County v. Holder—In 2009, the court stepped to the brink of overturning a key provision of the Voting Rights Act of 1965, but stopped short by ruling narrowly on a Texas municipal agency’s challenge to federal “pre-clearance” requirements for jurisdictions with a history of discriminatory voting procedures. Pending appeals from North Carolina and Alabama ask the justices to confront whether the 2006 renewal of the Voting Rights Act violated the Constitution by maintaining the preclearance procedures.

It isn’t always easy to know at the beginning just how big a Supreme Court term will be. At this time last year, it wasn’t even a certainty that the justices would hear the Affordable Care Act cases last term.

“I don’t think the upcoming term will be quite as dynamically charged as last term,” Bloch says. “But it could be.”


Initial Web and print versions of "Eyes of U.S. Are Upon Texas," October, incorrectly state that a tie vote in Fisher v. University of Texas at Austin would affirm a 1996 decision by the 5th U.S. Circuit Court of Appeals at New Orleans. The 4-4 vote, with Justice Elena Kagan recusing herself, would uphold the 5th Circuit¹s 2011 appellate decision in the case.

The Journal regrets the error.
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