Cara L. Gallagher, Weekend Contributor
When SCOTUS orders a case back to a lower court it’s rare that the case garners the same attention it received when it was in the Supreme Court. But Fisher v. The University of Texas at Austin, a critical case that still has the potential to uproot affirmative action programs in public universities – one that beckoned Justice Sandra Day O’Connor to the SCOTUS pews on decision day in June of 2013 – is one you follow post-SCOTUS. Perhaps Justice O’Connor traveled all that way to throw shade to those justices likely to upend her landmark 2003 affirmative action decision, Grutter v. Bollinger. Although the spirit of Grutter remained intact, the majority’s 7-1 decision to remand the case back to a lower court was done so with explicit instruction that the University prove they’d satisfied the necessary strict scrutiny test. The same attorneys who argued the case before the SCOTUS in 2013 stayed on the case arguing before a 3-judge panel in the U.S. Court of Appeals for the 5th Circuit.
On November 13, 2013 they, along with case namesake Abigail Fisher and the man who lobbied for the case to get into SCOTUS, Edward Blum, were back court.
Most (80%) applicants to the University get accepted through a Texas legislative program called the Top Ten Percent Plan (TTPP). If you’re in the top ten percent of your public high school, you’re automatically accepted to the UT. Abigail Fisher had solid grades but attended an academically competitive school and wasn’t a top ten-er (she was, however, in the top 12%). Fisher was pushed into the general applicant pool where a holistic admissions process is used. Because Texas public schools have become increasingly segregated, many of which are majority-minority schools, the TTPP has diversified UT’s student body in a seemingly race-neutral way. But such a plan hasn’t achieved the University’s goal of creating a critical mass of diverse students. One way the university works to achieve that goal is by employing a holistic process to admit students for the remaining (20%) seats. One subcategory, among six primary categories, uses race as a factor in determining admission through this method.
According to a piece from Joan Biskupic in Reuters, the decision would likely come down to one swing vote on the 3-judge panel. “During an hour of arguments, it appeared that the three-judge panel, which previously had ruled unanimously in favor of the university, might splinter. Judge Emilio Garza, an appointee of Republican President George H.W. Bush, appeared sympathetic to Rein’s claim that the university cannot justify using race in its decisions. Judge Patrick Higginbotham, an appointee of Republican President Ronald Reagan, implicitly defended the university. The third judge, Carolyn Dineen King, appointed by President Jimmy Carter, a Democrat, offered little clue in her few questions as to whether she might reverse her prior vote for the policy.”
It did come down to one swing vote when on July 15, 2014 Judges King and, likely swing voter, Higginbotham decided UT’s use of race for those in the holistic admissions process was narrowly tailored. Judges King and Higginbotham were satisfied that the UT could to use race as one of several factors, in the admissions process in order to further the university’s goal of creating a critical mass of diverse students.
“In sum, it is suggested that while holistic review may be a necessary and ameliorating complement to the Top Ten Percent Plan, UT Austin has not shown that its holistic review need include any reference to race, this because the Plan produces sufficient numbers of minorities for critical mass. This contention views minorities as a group, abjuring the focus upon individuals—each person’s unique potential. Race is relevant to minority and non-minority, notably when candidates have flourished as a minority in their school—whether they are white or black. Grutter reaffirmed that “[j]ust as growing up in a particular region or having particular professional experiences is likely to affect an individual’s views, so too is one’s own, unique experience of being a racial minority in a society, like our own, in which race still matters.” We are persuaded that to deny UT Austin its limited use of race in its search for holistic diversity would hobble the richness of the educational experience in contradiction of the plain teachings of Bakke and Grutter.”
Judge Garza was not persuaded that race-conscious holistic admissions processes are necessary nor have any measurable effect on achieving actual diversity.
“By accepting the University’s standing presumption that minority students admitted under the Top Ten Percent Law do not possess the characteristics necessary to achieve a campus environment defined by “qualitative diversity,” the majority engages in the very stereotyping that the Equal Protection Clause abhors.
In short, the University has obscured its use of race to the point that even its own officers cannot explain the impact of race on admission to competitive colleges. If race is indeed without a discernable impact, the University cannot carry its burden of proving that race-conscious holistic review is necessary to achieving classroom diversity (or, for that matter, any kind of diversity). Because the role played by race in the admissions decision is essentially unknowable, I cannot find that these racial classifications are necessary or narrowly tailored to achieving the University’s interest in diversity.”
On November 12, 2014 ten of the fifteen judges on the 5th Circuit bench voted not to hear an en banc appeal by Fisher’s attorneys ostensibly dealing a final blow to affirmative action opponents and to the most important affirmative action case in ten years.
Maybe.
Five days later, two complaints were filed against the University of North Carolina – Chapel Hill and Harvard University for their race-based admissions processes. The cases were filed with the help of The Project on Fair Representation, the same organization that vetted Abigail Fisher’s case for the Supreme Court. We may also see a return of the Fisher case to the Supreme Court. Edward Blum, director of The Project, has plans to appeal the 5th Circuit’s decision back to the SCOTUS.
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raff, Sell “white privilege” somewhere else. Do you also believe in Santa and the tooth fairy? A white kid growing up in a trailer park has it MUCH more difficult than the black kid of upper middle class families. That is not debatable, yet the black kid gets the perks of the “white privilege”.
Nicely done! 🙂
Since I am opposed to affirmative action in selecting students and in hiring in the private or public sector or in the military: I would propose that that the criteria be based on ability to do the work in their field and be blind as to whether someone supports or objects to any of the pet causes or social warfare issues.
The professor’s views on pro or anti abortion, pro or anti gay marriage, pro or anti any religion including the religion of climate change should be immaterial to their grasp of their subject and ability to teach the subjects that are their concentration. Math, Geology, English Literature, Composition, Meso American Archeology etc….whatever the course is. What they think or do in their personal lives is of no relevance to their duties as a professor. Personal issues should be kept out of the classroom. See next proposal.
I also propose that if or when the professors bring into the classroom their political or religious views…pro or anti….. or topics that are not pertinent to the course of study, they be fired.
I also propose that if there must be a class the glorifies or stresses one topic, there MUST be another viewpoint presented preferably IN that same class or in another course…so that all viewpoints are heard. The War of Secession was a great thing….was a bad thing. Discuss, compare and contrast….without the students being afraid to express opinions.
If the students can’t handle diverse opinions, they need to man up, cowgirl up, grow some balls and get into the real world where people don’t agree with you and no one is going to cater to your tender sensibilities.
I also propose that we all get glittery pretty ponies and live unicorns for our birthdays, which proposal has about as much chance as having conservative and diverse voices; teachers OR students, heard in academia today.
🙂
DBQ,
What would you propose the criteria should be for selecting conservative faculty? Would they have to be anti-abortion? Would they have to be registered Republicans? Would they have to be against sex education in public schools? Would they have to be adherents of specified religions? Would they be required to be climate change deniers??????
Elaine – they just have to be conservative as opposed to liberal. And there should be as many raving lunatics who are conservative as there are raving lunatics who are liberal on the same faculty.
Are you suggesting that there should be affirmative action for “conservative” college faculty?
Why not? If the goal is to have a suitably diverse student body by race. Why should it not be also diverse in thoughts or philosophies of students instead of being an echo chamber where only limited viewpoints are allowed or are expressed.
If the goal of diverse students is accepted as one that is important….. then the diversity should extend to the faculty so the students are exposed to diverse viewpoints…..as they will be if they interact at some point outside of the cloistered halls.
Paul,
Are you suggesting that there should be affirmative action for “conservative” college faculty?
Elaine – if there is to be social justice in the colleges then the faculty MUST reflect the political differences of the country by percentage of their followers country-wide. That gets liberal professors down to 23%.
Rafflaw,
And let us not forget the “affirmative action” for talented athletes and legacies.
Paul,
I don’t care if the faculty were 100% “liberal” if they were able to stick to the academic vis a vis social agenda. That’ll never happen, so what do we do about it? The trap is in thinking about demographics when determining entrance standards.
Speaking of profiling: why is it permissible for the federal government to collect and disseminate census data for the obvious purpose of profiling the electorate, but when it comes to law enforcement (security), it’s verboten?
Good article. I like the references, so that we can do research and read further. Also the clear writing that isn’t partisan and leaves us to make up our own minds.
Most (80%) applicants to the University get accepted through a Texas legislative program called the Top Ten Percent Plan (TTPP). If you’re in the top ten percent of your public high school, you’re automatically accepted to the UT. Abigail Fisher had solid grades but attended an academically competitive school and wasn’t a top ten-er (she was, however, in the top 12%).
While the concept of automatically giving acceptance to those who are in the top 10% of their school sounds fair, in reality it leads to a very uneven population of students both demographically and especially uneven in academic ability. Top 10% in a failing school with lower academic achievement…..may put you in the 10% bracket there, but might put that student in a bottom bracket in the bigger pool of students. Is this a fair thing to do to students? To put them into basically a no win situation where they are fighting to just get their head above water? False hopes and false expectations.
That was one of the main issues with affirmative action: students being cast into the deep end of the pool without adequate skills. The stress on those students is incredible. The other issue with affirmative action is: should you just let the one end of the demographic curve sink or swim or do you “dumb down” the course work to enable the affirmative action student to be able to keep up. In that case, how is it fair to those students who excel or have the skills to achieve more challenging classes to force them to sit through classes that are elementary at best or at worst, a waste of their time and money.
The question asked by Olly is a good one. is diversity the goal of college? Or is the goal to educate students and prepare them to be able to succeed after college. Or is it the goal to have the perfect, politically correct mix of races, genders, cultures even though more qualified students are denied admittance because they didn’t fit into the mix or would unbalance the perfect profile of a diverse student body.
The world outside of academia is NOT diverse or balanced. Why should students be punished in the goal of an artificial balance of diversity?
DBQ – I think the goal of any college should be to give the best education possible to whoever gets in. Since liberals are only 23% of the general population, they are over represented on the faculty of every university and any attempt at fairness and social justice would require that the faculty reflect the general public. A whole lot of firing needs to go on before there is real social justice on faculties.
Cara,
Your posts are refreshing and I hope they encourage greater participation. I’m curious to know how the Court attempts to balance “social” justice with the Fourteenth Amendment?
“There is no guarantee, however, that an Article V majority of the American people or any majority will always act justly and fairly. Thus, I must agree that the Fourteenth Amendment does not necessarily guarantee justice and fairness to all.”
http://www.harvard-jlpp.com/wp-content/uploads/2013/10/CalabresiFinal.pdf
Great article Carla. I agree with the 5th Circuit decision.
Nick, the whole idea of the affirmative action procedures is that white kids, whether they are from the right or wrong side of the tracks, have an easier road to success in general, as compared to the minority students, as you suggest when you state that minority students do have a “tougher road”. The very Life experiences that you suggest as bonus criteria can be considered by the Project on Fair Representation folks as evil, if one white student is disadvantaged by your bonus criteria. And in the same breath you claim that education spending should be cut. Who will be hurt the most by your call for cuts and reducing who goes to college?? Who gets to decide who is best served by learning trades??
Is “diversity” a function of higher education? Is the university the place to address the failures of public policy? I don’t ‘want’ college to be anything more than what it’s chartered to do. I don’t want it to be populated based on criteria that has nothing to do with its purpose. This document expresses very well the purpose for higher education; can you find the section where it addresses the importance of affirmative action in meeting the institution’s higher education mission?
“there is now pressing need for greater understanding on the goals and purposes of higher education in the 21st century. Notably, leaders of higher education must connect undergraduate students with discipline-specific competences and dispositions for the labor market, and assist faculty members to work with students in designing and mapping out institutional degree profiles that could help colleges and universities benchmark their higher education degree programs.
Implementing such agenda into professional practice is both empirically and methodologically challenging. However, such investment could help institutions to predict social, economic, cultural and political changes in higher education of which is essential to address the growing misalignment gap between institutional and undergraduate students as well as employers and college graduates.”
http://www.academia.edu/2626994/What_is_the_purpose_of_higher_education_Comparing_student_and_institutional_perspectives_for_completing_a_bachelor_s_degree_in_the_21st_century
great article Cara – totally agree with Inga
Our new weekend blogger is showing her chops. White kids from the wrong side of the tracks have an 0 and 1 or and 0 and 2 count against them as well as minority kids do. They have no remedy. And, the dirty secret is Asian kids also get the short straw because of these rules. I do want a diverse group of young people going to college. I know minority students have a tougher road. Affirmative action needs to be phased out. Additionally, the education industry needs to be cut. Too many kids go to college. More kids would be MUCH better served learning trades.
All who have attended college in the last 25 years know schools have long been looking @ life experience, volunteerism, etc. as a bonus criteria in college admission. That should continue.
Correction:
*It appears that affirmative action is under attack. I’m conflicted on this, one thought is that while a meritocracy in education ensures the best and the brightest who are either gifted, or worked the hardest should get first consideration it doesn’t necessarily allow for a fair economic and social representation in the student body.*
It appears that affirmative action is under attack. I’m conflicted on this, one thought is that while a meritocracy in education ensures the best and the brightest who are either gifted, or worked the hardest should get first consideration. Yet there are those who work equally hard and cannot quite make that top ten percent. There are factors and characteristics that a candidate for admission may hold. What are those? Why not base those on personal characteristics? Economic status, one parent household, volunteerism, life experiences and other unique characteristics that would diversify the campus without basing it purely on race? I’d hate to see students of poor and working class background, who have aspirations, yet can’t make the top ten percent be locked out of a university education. We know that if daddy has enough money, he can buy his kid’s way into a prestigious university.
RACE really is ‘wild’ in our national deck of cards; it trumps the equal protection clause of the 14th amendment. Actually, it’s more like the equal ‘outcome’ clause because it certainly does not protect ALL citizens equally. The racism mantra for white America is like an ironic, nightmare version of “Groundhog’s Day”; it doesn’t matter how much they change, they remain a slave to their past.
We must stop this dark hedonistic multicultural subversion and treason within our American white christian schools…
I am for helping economically disadvantaged students once they are in school because they are usually holding down at least one part-time job while they are going to school and can use the extra help.
As someone who has taught at-risk students and had the challenge of getting them into college, I want an even playing field for my students. When the deck is stacked (race based) then things are not fair. I think the Top Ten is a fair program and after that it should be by lottery for qualified students.