Court Set to Strike Affirmative Action

On October 10^th, the Supreme Court heard arguments in Fisher v. University of Texas at Austin.  Abigail Fisher, a young white woman who was rejected from UT Austin in 2008, sued arguing the UT admission criteria considering race was unconstitutional.

According to SCOTUSblog,

“The last time the Court dealt with a college affirmative action case was in 2003, with the decision in Grutter v. Bollinger. It was a five-to-four decision that upheld the use of race as one factor to serve a “racial diversity” policy in selecting students for the University of Michigan Law School. Only two Justices in that majority remain on the Court…[and] Justice Sandra Day O’Connor, the author of the main opinion, has been replaced by Justice Samuel A. Alito, Jr…."

The case is, of course, complicated.  Prior to Grutter, Texas created a Top Ten Percent Plan for their state, because a federal court had struck down their previous approach for unconstitutionally taking race into account. The Top Ten Percent Plan means that the top ten percent of every high school graduating class in the state is guaranteed admission into a state university in Texas.  Sidebar:  this strikes me as a very smart idea for increasing diversity (racially and geographically) without using any suspect criteria.  According to SCOTUSblog, this provides an important piece of the context for the current case.

“The ‘Top Ten Percent Plan’ — still in effect — has filled more than eighty-five percent of the available slots in the entering freshman class, so Ms. Fisher was competing for admission with a much smaller group. and she did not make the cut. She believed that it was because of her race.” 

But following Grutter, Texas decided to copy Michigan and use race as one of many criteria embedded into a ‘holistic’ evaluation process, because the Top Ten Plan had not adequately increased minority enrollment.  So, post-Grutter and to this day in Texas, race is taken into account in admissions when Fisher’s application was evaluated at part of the much smaller pool of applicants (15%) not admitted through the Top Ten Plan.

“Race is taken into account as part of a personal achievement index that is used along with an academic index — that is, one based largely on grades. A given applicant’s race is just one factor in the personal achievement ranking, and the University insists that it does not control outcomes on its own; admissions officers look at each student, it insists, in a “holistic” way.

In practical operation, the Austin plan has achieved the “diversity” results the University sought: the University of Texas vaulted into the sixth spot nationally in producing undergraduate degrees for minority groups. In the admissions in 2008, overall enrollment of black applicants had doubled, that of Hispanic applicants rose 1.5 times, and Asian-Americans, nearly ten percent. Some part of that, of course, was due to changes in Texas’s overall population, with the state’s Hispanic population growing at a very rapid rate.

Ms. Fisher (and another white applicant no longer involved in the case) sued the University after they were denied admission. Although Ms. Fisher went on to college at Louisiana State University and has since graduated, she remains the central figure in her case, with her lawyers insisting that she still has a legal interest in it. She lost in a U.S. District Court, and in the Fifth Circuit Court — a regional federal appeals court. In the appeals court, the three judges were divided two to one in favor of the University plan. When Ms. Fisher’s lawyers tried to get the case reconsidered by the full Fifth Circuit Court (a larger panel), she lost, nine to seven.”

The court appears ready to conclude (or rapidly wind down) the affirmative action era.  This case will be watched closely for that reason. 

I hope, however, that the court does not extend its reach to striking down the Top Ten Percent Plan, because (and this may be the first time I have said this about Texas) that strikes me as a very good idea.  Since it accounts for 85% of enrollments, a case might be made for a shift to a Top Five Percent Plan, but either way, I hope that idea survives.  Way to go Texas.