Fisher v. The University of Texas 2.0

By Cara L. Gallagher, weekend contributor

Abigail Fisher and her eponymous affirmative action case headed to the SCOTUS last week, again. The question we’re all wondering with this news is: If the Court takes this case, are affirmative action policies in college admissions dead? Despite graduating from Louisiana State University almost three years ago, Fisher said it is her hope that the Justices take this case again and end what she and the Project on Fair Representation believe is the unlawful use of race in college admissions at the University of Texas, the school she sued after she was denied acceptance. The question they’re asking the justices to answer this time is “whether the Fifth Circuit’s re-endorsement of UT’s use of racial preferences in undergraduate admissions can be sustained under the 14th Amendment’s Equal Protection Clause.”

The Court punted in the 2013 decision, remanding the case back to the lower court

with specific instructions that the UT prove they’ve met the standard of strict scrutiny. Under this standard, the University must prove the use of race, even if it’s one of several factors used when considering an applicant, is necessary and that no other race-neutral process could achieve creating the same diversity. Texas already uses a race-neutral process called the Top Ten Percent rule to get 80% of the freshmen classes at the UT. High school students in the top ten percent of their graduating class are automatically given admission to the university. As many of the schools in the state are segregated, this process has increased the number of minority students admitted. But the UT says it’s not enough to create the critical mass of racially diverse students they want.

I was in the Court the day the Fisher decision came down and Justice Kennedy, speaking for the 7-1 majority (Justice Kagan recused herself in the case), sent the case back to the lower court with a warning to the University – Prove you can’t achieve your goal of diversity without using race or change your policy. When the Court fires a warning shot it sends a clear message that they will alter significant precedent if significant changes are not made. But Texas hasn’t changed anything. Since the decision, race is still one of the criteria used in the UT’s admissions process and the 5th Circuit ruled (twice) that they were satisfied with the school’s practice.

I wrote a piece recently about the en banc decision from the 5th circuit. Edward Blum, director of the Project on Fair Representation, is challenging two other universities in court for their race-based admission processes. According to their new and improved website, the PFR is bringing legal action against Harvard and UNC-Chapel Hill.

It’s hard not to picture the majority at least mildly perturbed and anxious to rehear Fisher. If this case gets four justices to grant certiorari it doesn’t spell the imminent demise of affirmative action practices nationwide – remember, Texas’ Top Ten Percent rule is a unique feature of the state that is already race-neutral – but it doesn’t look good.

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11 thoughts on “Fisher v. The University of Texas 2.0”

  1. while this case is about race, remember that affirmative action helps women too. (and has helped women to a greater extent than blacks, hispanics, etc.) 50% of the population is discriminated against. your mothers, your sisters, your daughters.

  2. Educated well intentioned good girls in my bar.
    Wonder where I’d be today of she had loved me too.
    Probably be driving kids to school.
    Guess I owe it all to Pamela Brown.
    All of my good times, all my roaming around.
    One of these days, I might be in your town.
    Guess I owe it all to Pamela Brown.

    Jim Crow South was a bigot program that never went astray. It was well intended: keep the N guys down. It got stomped down for a bit but is rearing its ugly head. How many bubbles in a bar of soap?

    Ask John Roberts.

  3. Justice, and college admissions, should be blind. Admission should be based on merit alone.

    If we want to improve college admissions among minorities, then we need to work to make them equally competitive, not lower the bar for them. I went to college during Affirmative Action. Several of the professors I knew complained that they had to teach the same class for two completely different student audiences, those who deserved to be there, and were qualified, and those who got there based on the color of their skin, and were not qualified. Those AA students took the spots of those who had earned the grades to be there.

    There were similar complaints in the military, police, and fire departments – where wildly unqualified applicants were given spots because they were women or minorities.

    We should have equal opportunity, not two completely different sets of standards, based on skin color. There is a lot we can do – emulate Harlem Children’s Zone’s success, after school tutoring, giving kids a safe place to play and study. But in the end, the students need to achieve success.

    This is yet another well intentioned Liberal program that went astray. They might not have intended to lower the bar, but that was the result.

  4. For Texas to be fair and balanced they are going to have to open a system of all black universities for the students who went to the all black or mostly black high schools in their segregated system. Missouri had Lincoln University set up for this purpose many years ago. I am sure that the Roberts Court would accept “separate but equal”. Justice Thomas would probably go along with it. He got to go to a private school along his journey. He was John Danforth’s assistant attorney general in Jefferson City before he was the head of the EEOC and he was known for being Unreconstructed. He was proud of it. He had a Confederate Flag on his desk to prove it and sometimes a large one on his wall. That is how Clarence went forward in life. He would not be on the Supreme Court were it not for being Unreconstructed back in his Jeff City days. The present Supreme Court is Unreconstructed. They do not believe in the Reconstruction efforts such as the 14th and 15th Amendments to the Constitution or certainly not the Voting Rights Act of 1965. That was LBJ All The Way. The present Supreme Court will go all the way with Justice Roberts. I note that I have a prejudice against Texas. All my exes went to Texas. That was back when I was a human. Dogs don’t marry and don’t go to college. We read up on the law like Lincoln did and do it when no one is looking. There is another blog today about Mississippi. That state is not far from Texas. I would like to send a copy of that blog and the comments today to Justice Roberts. The Roberts Court will live on in infamy for what it did to eviscerate the Voting Rights Act. How many bubbles in a bar of soap? Anyone on the blog know what that question was all about?
    Dred Scott is rolling over in his grave again. He was from Missoura. His case was first decided in the Old Courthouse down at the riverfront at the Arch in Saint Louis. Long before the Arch. This is a few miles from Ferguson– where I am staying now with my half blind guy. We are looking up a family tree trying to make claim to an inheritance of his.

    1. BarkinDog – there are HBC (historically black collages) that can pick up the slack. Spelman is one of the best (Spike Lee).

  5. Quite only telling people how good fish (education) is for them – one of two things has to happen ! They must decide they like fish enough & they have to spend the time to learn how to fish. The tools are there – use them !!

  6. The end of affirmative action is a good thing. The importance of
    merit must not be devalued further. When standards are lowered
    solely for the sake of politically engineered diversity, society
    suffers. This country needs to focus on K-12 to insure literacy
    at the minimum. When only 22% in L.A. graduate prepared for college, that’s were the problem lies.

  7. When Texas went to this system I had high hopes, it looked good. Sorry to hear they are not getting better results.

  8. I have to agree that the Supremes will not be too excited about the University’s response.

  9. Whatever good affirmative action has done in our culture, and it has done some good; has been negated by the damage it has done. I believe soon it will be gone. IMO, that’s a good thing.

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