Affirmative action in college admissions survives. For now.


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.


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.

The views expressed in this posting are the author’s alone and not those of the blog, the host, or other weekend bloggers. As an open forum, weekend bloggers post independently without pre-approval or review. Content and any displays or art are solely their decision and responsibility.

125 thoughts on “Affirmative action in college admissions survives. For now.”

  1. ollym, the problem is affirmative action in concept, the problem is sloppy or misunderstood implementation.

  2. Inga, true, but I’d bet there are just as many, if not more, less qualified gaining entry through legacy than thru affirmative action.

  3. Well, a legacy position allowed him to attend college, a gentleman’s C student, while more gifted students couldn’t get in; a well connected daddy with rich friends who set him up in more than one business at which he failed; a rich kid’s position in the TxANG where he went AWOL while other kids went to Viet Nam; a whole network of party members who owned and manipulated the computers voters used to elect someone else, a brother who was governor of a key state that made such a mess of the vote that it allowed 5 people in black robes to appointed him prez.

    1. bettykath – do we want to talk about the draft dodger Bill Clinton and his ‘trip to England?’

  4. Affirmative Action is about taking a second look at those traditionally overlooked to find those qualified. The unqualified who move ahead on the basis of affirmative action do so because of incompetent selection or by those looking to destroy affirmative action. If you want to attack affirmative action, it might be good to take a look at the legacy positions that are availabe, sometimes in spite of lack of qualification.

  5. “And I have personal experience with being academically over-matched. I didn’t pass my GED exam until the 3rd try.”

    Dos Santos,
    There are those that are so self-absorbed they believe Cara joined the weekend bloggers unprepared. Your humility however is in very sharp contrast to that and an extremely welcome addition to this blog. 😀

  6. Here’s my solution:
    Chose students from a low income and inner city school, who show some intelligence, discipline, and potential to be a good student. Place them in an elementary and high schools in a nearby district that has a middle class average and above average school system. Give these students the opportunities to socialize, study, and adapt to a middle or above average economical society.
    If they can continue to study, focus, and work towards their educational goal, the state and corporations pick up their expenses and pay for the first two years of community college, where they will complete their general ed requirements.
    If they can get two years of college under their belt, they are more apt to continue to reach their goal of a degree. Today, students have the benefits of student aid, grants for low income students, scholarships, and loans to help them through college.
    This way the only fair affirmative action they receive is in elementary through community college and they can prove to themselves their self worth, like everyone else.

  7. When I graduated from high school and began college, there was no such thing as affirmative action, yet I went to school with a diverse group of students.
    Many years later, I decided to return to college and get a degree in education. By then affirmative action was in place. I saw many affirmative action kids struggling in their classes, unable to write a cohesive paper, and some were undisciplined. Yet, they were passed through and graduated with those of us who focused and kept our eye on the goal.
    I’ve worked with affirmative action teachers and find only 1 out of 5 to be good instructors.
    I’ve known people in other industries who were passed over for manager promotions because there weren’t enough minorities in those positions. Those people chosen weren’t qualified, but were minority.
    I’ve even seen where black minorities trump Hispanic and Asian minorities for a position.
    I believe that many of our present problems are due to affirmative action.
    Life isn’t fair, and many need guidance, but let’s not sacrifice our intelligent people for mediocrity.

  8. I tried to make a comment earlier and I was ignored because I suppose I wasn’t speaking in University Language because I don’t feel like it right now. But I need to make a point because I have been visited upon by an unfortunate element of society – a white person – from the “poorer” side of town who lives on SSI in St Louis off St. Charles Rock Road and Woodson. Close to W. Florissant Road. He tested Positive for Methamphetamine on the 22 of December. He is 57 years old and has had 2 heart attacks, kidney cancer and COPD. There are many people like “Tom” in the poorer parts of St Louis pocketed around. They are not all Black and they are Drug Dependent. Once again, we need to address the true problem here. The problem is Prescription Drugs and Methamphetamine and now the legalization of Marijuana. Yes – that drug they legalized is as strong as PCP now days. It is ridiculous people are allowed to walk around or shall I say stumble around dazed and confused in the twilight zone.

    I don’t care what kind of personal problems everyone is having right now because I think we all should look at the truth of the matter here. When the Jim Crow Laws were repealed or whatever and Dr. King did what he did best, the Black people got their big break. Anything else is overkill. They can take it from there. They don’t need special handling. They are just as smart as we are. They need motivation and to get their streets cleaned up and the Drugs to disappear for good. The Athlete Worship needs to stop and there needs to be some serious mind worship. I am tired of hearing about how Black people are not as intelligent as white people. It is not true. It is their diet and circumstance and environment that holds them back. Throwing money at them will change nothing. I have seen them tear down brand new apartment buildings over and over again in St. Louis. The Drug Culture needs to come to an end. A SCREECHING HALT. I personally have suffered from this a great deal and I don’t mind saying so. I will do testimonials all day long if it will do any good.

  9. By Top Ten I assume you mean highest grades. It’s not very unusual for brilliant kids to not get very high grades. I personally know a few cases. They demonstrate their gift in other ways. I see your point but some mechanism must be in place to assure genius is not denied. When that happens everyone loses. And because schools vary drastically some top 10%ers will be hopelessly mismatched which is cruel to them and a horrible waste of resources. I know there’s no perfect solution. But some are less imperfect than others. And I have personal experience with being academically over-matched. I didn’t pass my GED exam until the 3rd try. But that pathetic little anecdote doesn’t mean I’m wrong.

  10. Are you really helping under-represented minorities (or anyone else) by placing them far over their heads where they have little hope for success? Should we pretend this isn’t guaranteed to often happen with the 10% plan? Or should academic standards be targeted at the 5-10% weakest students?

    1. Don Santos – I co-taught my at-risk students college classes and they held their own. Students need to know where the bar is and they will reach it. When it is low that is as far as they are going to reach and they are going to be restless besides. When it is high they may be struggling, but they will get there and they do not have time to get into trouble.

  11. If all qualified applicants are subject to a lottery it’s always possible brilliant students will lose spots to distinctly non-brilliant ones. In the medical field this could have tragic consequences.

    1. Don Santos – that is why I support a Top Ten automatic qualification and acceptance. Lottery after that. Assuming a lottery is needed. Law schools are losing admissions.

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