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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(that was a long sentence sorry) 🙂
You are so wrong about me. I had no control over where I lived and went to school before college. After that I was pretty much surrounded by diversity by choice, not happenstance.
Bettykath
I didn’t say you were wrong in not having a diverse group of people around you in your youth. That is just what it is. Nothing wrong about it. However, they way people live, who they knew and associated with, does shape their formative years. Those things also hold over into our adult lives.
That you have had a more diverse life later is also what it is. That you feel benefited is great.
There is nothing pejorative in noting the things that you disclosed. There is nothing wrong with remarking on how those things ‘seem’ to me to manifest in your observations today.
People are different. We all have had different upbringings, life experiences. Where I object is when people want to force everyone to look at life through the same filter and when we don’t we (I) have been accused of all sorts of failings because we (I) do not look at things the same way that you do. That is just life.
I do not expect you to be me nor should you (or anyone else) expect or demand that I think or be like you.
Discussion and conversation would be a lot more pleasant and productive if we can agree that not everyone is the same and that we can actually learn from each other instead of calling names.
Never end a sentence w/ a preposition.
Why is it that some conservatives commenting here seem to think they know liberal commenter’s life experiences?
Ummmmm? Because I take the statements given by liberal commenters at face value. People reveal much about themselves in little dribs and drabs or in great big spoutings. Those things make us more human and more able to understand each other.
Again with the assertions based on assumptions. How can this person possibly know what other commenter’s backgrounds and life experiences are?
Because she told me.
Bettykath clearly talked of her lack of diversity in her high school. One of her life experiences. I then compared her life experience to mine. To the very widely diverse group in my high school. Merely comparing experiences. This is what people do to understand each other and try to communicate.
December 27, 2014 at 7:46 pm bettykath
When I was in high school, there were two Black girls and one Jewish boy. All others were white, protestant or Catholic. Needless to say, I didn’t know much about diversity. In college, I interacted with many Black, Asian, and Jewish students. I benefited greatly by that exposure.
on 1, December 28, 2014 at 3:19 pmNick Spinelli
Permission?
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Spinelli, who are you asking permission from?
That’s what I do for a living.
Just asking questions.
Email being written.
So do the Clampett’s
Ferrets eat rodents.
Permission?
I’d hire a more reliable ferret.
I ferret out dissemblers for a living. Caught a few here. Some are compulsive and impulsive about it. Just sayn’!!!! I’ll be happy to list the lies, w/ no fear of libel or slander, if given permission from individuals. Hmmm.
Bettykath, it’s only gotten worse, hasn’t it?
Inga, When their arguments don’t carry the day they resort to insults and ad hominem. So sad.
bettykath – you could add your bona fides as well.
Why is it that some conservatives commenting here seem to think they know liberal commenter’s life experiences? These unfounded assertions are simply ridiculous. And it’s the same few who consistently do this.
Inga – you want to give us your bona fides?
on 1, December 28, 2014 at 1:20 pmNick Spinelli
Many so called progressives here, and elsewhere, are “down w/ the struggle” in the abstract. They have never lived, associated, or worked in or w/ inner city folk. I like black people. Not all of them. No one can like ALL of any culture unless they’re Jesus. But DBQ is very observant, as am I. We can spot folks who have lived cloistered lives and are able to be “progressive” in the abstract. I know many would become racists if they were exposed to the depravity of the inner city. I’ve seen it happen w/ coworkers.
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Again with the assertions based on assumptions. How can this person possibly know what other commenter’s backgrounds and life experiences are? Seriously this is pure twaddle… again.
BS!
DBQ, ‘The lack of diversity in your life and your one dimensional view of how other people might live or think.
Stuck in the 50’s so to speak. PS. I really don’t think you are in your 70’s”
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You are so wrong about me. I had no control over where I lived and went to school before college. After that I was pretty much surrounded by diversity by choice, not happenstance.
Many so called progressives here, and elsewhere, are “down w/ the struggle” in the abstract. They have never lived, associated, or worked in or w/ inner city folk. I like black people. Not all of them. No one can like ALL of any culture unless they’re Jesus. But DBQ is very observant, as am I. We can spot folks who have lived cloistered lives and are able to be “progressive” in the abstract. I know many would become racists if they were exposed to the depravity of the inner city. I’ve seen it happen w/ coworkers.
Nick Spinnelli – No one can like ALL of any culture unless they’re Jesus. But DBQ is very observant, as am I. We can spot folks who have lived cloistered lives and are able to be “progressive” in the abstract. I know many would become racists if they were exposed to the depravity of the inner city. I’ve seen it happen w/ coworkers.
My observation is they(Those Progressives you are talking about) don’t even admit to the hatred that becomes planted in their shrunken souls but they make statements like the Black folk can’t do any better because they aren’t smart enough so just give them food stamps, welfare and section 8 and make sure they stay off drugs in Florida and Missouri and just keep that system nice and tight so they can’t ever better themselves.