What happens after race-based admissions policies lose in the Supreme Court?


By Cara L. Gallagher, weekend contributor

This year, Groundhog Day will be celebrated on Wednesday, December 9th. That’s the day Fisher v. The University of Texas at Austin – a case that tests the use of race in admissions processes – returns to the U.S. Supreme Court. The case heads back to the SCOTUS Wednesday only two years since Fisher I. The University received a warning shot last time when a 7-1 majority remanded the case back to the lower court ordering the UT prove the only way to achieve a “critical mass” of diverse students was to do so using race as a factor in their admissions process.

That was in June of 2013. Since then UT hasn’t changed its admissions processes and the 5th Circuit Court of Appeals ruled again last summer that the school’s use of race passed constitutional muster.

So what does this mean? It means the SCOTUS was being conciliatory last time and likely won’t be so understanding this time.

UT is going to lose this case, sending affirmative-action policies on college campuses across America into a tailspin. But not a death spiral.

In 2008, Abigail Fisher challenged the use of race in the UT-Austin’s holistic admissions process, a school she’d aspired to attend because her parents were alums. The surefire way to get into the UT – a school 91% of Texans attend – is to be smart: top ten percent of your class smart. That’s because the Texas Legislature passed a law in 1997 that guaranteed admission to every Texas public school student in the top ten percent of his/her class. Roughly 70-80% of students at the UT get in through the Top Ten Percent Plan (TTPP). The remaining seats are awarded through a holistic process. Fisher was smart (top 12% of her class), but not smart enough, and she was thrown into the holistic process where her application was considered based on six categories. The categories include objective criteria like grades and test scores, as well as subjective criteria like personal essays, extra curricula, leadership opportunities, and “special circumstances.” Race is one factor among six in the special circumstances category.

Fisher asserted she was denied admission because, unlike other applicants of color, she couldn’t use race as a meaningful factor to her advantage so she sued the claiming UT violated the equal protection clause of her 14th Amendment rights.

Previous caselaw such as Regents of the University of California v. Bakke (1978) and Grutter v. Bollinger (2003) support universities’ consideration of race in admissions processes, but such processes must withstand the test of “strict scrutiny.” To do this they have to prove the use of race serves a compelling need, demonstrate to a federal court their race-based admissions processes are narrowly tailored, and that there is no other race-neutral way to achieve the same outcome without such a process.

This is where the case falls apart for UT. The Top Ten Percent Plan achieves diversity without using race. The question is how much diversity is enough, or enough to achieve a “critical mass”?

The reality of Texas’s public high schools is that many are majority-minority schools, especially in urban areas. “While the Top Ten Percent Plan boosts minority enrollment by skimming from the tops of Texas high schools, it does so against this backdrop of increasing resegregation in Texas public schools, where over half of Hispanic students and 40% of black students attend a school with 90%–100% minority enrollment.”

Segregated neighborhoods pervasive in Texas keep Hispanic schools Hispanic, black schools black, and white schools white. Certainly, majority-minority schools are not unique to Texas, they’re everywhere in America. And while we may be inclined to praise the Texas legislature for enacting seemingly progressive policies that attempt to remedy the problem, remember that this legislation only works if the public schools in the state stay segregated. To celebrate Texas’ TTPP would be like rooting for Linda Brown in Brown v. Board of Ed. to have stayed at her majority-minority school so that she too could maybe have a shot at getting into college.

So Fisher will win this case, for starters, because Justice Kennedy’s majority opinion in Fisher I was clear to the lower court – unless something changes, as it stands, the UT’s use of race doesn’t satisfy the narrow tailoring requirement of strict scrutiny. “Strict scrutiny is a searching examination, and the government bears the burden to prove ’that the reasons for any [racial] classifications [are] clearly identified and unquestionably legitimate.’” While the UT, like many universities, has a legitimate desire “to further a compelling interest in obtaining the educational benefits that flow from a diverse student body” it changed nothing to its admissions policies since the majority’s warning.

Further challenging the legitimacy of the use of race is the fact that students of color are gaining admission through the TTPP. Kennedy wrote narrow tailoring “requires a court verify that it is “necessary” for the university to use race to achieve the educational benefits of diversity. The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.” Writing for the majority in the 5th Circuit, Judge Higginbotham said “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.” It seems almost impossible to imagine the majority supporting the lower court’s inaction last summer in light of incremental gains in minority students via the TTPP.

In the first Fisher, Justice Kennedy criticized the lower court saying it couldn’t simply give UT the benefit of the doubt and had to closely examine how the process works in practice. Though deference has been shown to universities, UT must demonstrate “no workable race-neutral alternatives would produce the educational benefits of diversity.” Strict scrutiny can’t be arbitrary or “strict in theory, but fatal in fact.”

Finally, only 8 of the 9 Justices sat for Fisher I and will for Fisher II. Justice Elena Kagan recused herself both times because she worked on the case when she was in the Solicitor General’s office, before she joined the bench. Mathematically this couldn’t work better for Fisher given the four historically conservative justices have been vocal about their desire to kill all affirmative-action policies, with Kennedy most definitely siding with them again.

So what happens to affirmative action programs in public colleges and universities after UT loses? Remember that the trajectory of race-based college admissions cases since Bakke has mostly resulted in the same response from the Supreme Court: You’re doing it wrong. Does that mean if Fisher wins the decision will send all affirmative action admissions programs into a proverbial “death spin”? Not at all, but it will make using the word “race” in admissions nearly impossible.

So what then will be the new ways in which colleges can admit and attract minority students without explicitly using race? I have a few ideas that are at best in their crazy nascent stage, at worst constitutionally unsound but perhaps thought-provoking.

  1. Subvert the currencies of admissions.

Get rid of grades, test scores, and legacy status. The first two are arbitrary, subjective, distract students from process and enrichment, privilege the privileged or those who can afford tutors, and benefit white students more than students of color. The last one is where the real debate about fairness in college admissions should be happening.

Similarly, pull the focus away from the currencies and put it into a comprehensive entrance process, similar to the application process at Bard College:

“The Bard Entrance Examination offers a new way to apply to Bard that bypasses existing standardized tests and admission processes, leveling the playing field among applicants worldwide. The examination enables motivated students to gain admission through an essay test, engaging applicants in a process that more closely mirrors actual college coursework. The examination is composed of essay questions in three categories: Social Science, History, and Philosophy; Arts and Literature; and Science and Mathematics.”

Have teams composed of professors, deans, and current and former college students read three essays. If two teams mark it above an 80%, or whatever the desired score is, the applicant gets accepted. The grade can be curved based on per pupil spending or zip code data, or any data that would reveal more about the quality of the public high school from which the applicant came.

     2.  Create an institutional policy similar to TTPP.

Admit a percentage of students based on per pupil spending data or zip codes of public schools. Per pupil spending on school districts in black or Hispanic neighborhoods tends to be significantly lower than white districts. Establish a metric in which zip codes historically inhabited by minority applicants are weighted higher than those in wealthier districts.

This still seems like a lot of end runs schools will need to take to achieve the seemingly established, legal right they have to use race as a factor in admissions. But how do you support diversity in race-blind ways? It’s an almost laughable oxymoron. Justice Ginsburg, who wrote the lone dissent in Fisher I, said in a footnote “The notion that Texas’ Top Ten Percent Law is race neutral calls to mind Professor Thomas Reed Powell’s famous statement: ‘If you think that you can think about a thing inextricably attached to something else without thinking of the thing which it is attached to, then you have a legal mind.’ Only that kind of legal mind could conclude that an admissions plan specifically designed to produce racial diversity is not race conscious.”

Oral arguments are scheduled for Wednesday, December 9th, 2015. A decision in the case is expected sometime next spring or summer.


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.

24 thoughts on “What happens after race-based admissions policies lose in the Supreme Court?”

  1. Never mind that for a black man with a college degree it is about as hard to find employment as for a non-college educated white man with a felony record. Never mind the centuries of racism, explicit and implicit. The Black Codes of Mississippi. The housing discrimination and red-lining that allowed the white middle class to jump miles ahead. Never mind all that. We have a black president so it’s all good now. Except for those hilariously scary black panthers at the voting booth. You all crack me up.

  2. Affirmative action is unconstitutional bias. Government in a nation based on freedom must be neutral and not interfere in private sector freedom. The right to private property precludes governmental dictate as to its possession and disposition.

    American government, limited to security and infrastructure, as Justice, Tranquility, Common Defence, Promote General Welfare, exists only to facilitate freedom and free enterprise without governmental interference. Free people must adapt to their own characteristics and live with the consequences of freedom. The American government was never established to transform minorities into majorities.

    Madison wrote the first ten amendments as the Bill of Rights to stand, as do the Ten Commandments, in perpetuity, and to preclude any further modification of the Constitution for fear of the destruction of the very Constitution itself. America has been there since Lincoln’s “Reign of Terror” including his eminently unconstitutional “Reconstruction Amendments” – No law or amendment may be brought for the benefit of “property” or foreign citizens and a government that allows immigration policy to be set by two foreign citizens in the process of childbirth, is not a government at all.

    As to illegal and unconstitutional amendment and immigration:

    “…the harmony of the ingredients is all-important, and whatever tends to a discordant intermixture must have an injurious tendency.”

    Let’s hear from Mr. Lincoln:

    “If all earthly power were given me,” said Lincoln in a speech delivered in Peoria, Illinois, on October 16, 1854, “I should not know what to do, as to the existing institution [of slavery]. My first impulse would be to free all the slaves, and send them to Liberia, to their own native land.” “…he asked whether freed blacks should be made “politically and socially our equals?” “My own feelings will not admit of this,” he said, “and [even] if mine would, we well know that those of the great mass of white people will not … We can not, then, make them equals.”

    And Mr. Jefferson and Mr. Hamilton on undesirable immigration:

    Jefferson –

    “Suppose 20 millions of republican Americans thrown all of a sudden into France, what would be the condition of that kingdom? If it would be more turbulent, less happy, less strong, we may believe that the addition of half a million of foreigners to our present numbers would produce a similar effect here.”

    Hamilton –

    The safety of a republic depended “essentially on the energy of a common national sentiment, on a uniformity of principles and habits, on the exemption of the citizens from foreign bias and prejudice, and on that love of country which will almost invariably be found to be closely connected with birth, education and family. The influx of foreigners must, therefore, tend to produce a heterogeneous compound; to change and corrupt the national spirit; to complicate and confound public opinion; to introduce foreign propensities. In the composition of society, the harmony of the ingredients is all-important, and whatever tends to a discordant intermixture must have an injurious tendency.”

  3. Professors get paid too much. Start with that. End all white or all black Frats. End all subsidy by states or feds for Frats. The only difference between a Frat and the Klan is the hood ornament. And they all found Jesus, on their own.

  4. The Sups are powerful, but mass media actually runs the country. Or whomever controls that. So the Sups can do whatever they like, one day the barbarians will outnumber the Romans and then all pretense of fairness and justice will vanish. Vae Victis!

  5. Olly, Amen. I grew up blue collar in CT. My my friends who were not interested in college were ENCOURAGED to get training for good careers. Tool and die jobs were for the good math students. Mechanics, plumbers, electricians, etc. were all interesting, good paying jobs. I had a friend who became a tool and die maker and built a business w/ 50 employees.

    The Education Industry is behind this and the Education Industry is as a wholly owned subsidiary of the Dem party. That’s why there is all this “free college” horse manure and no respect for the good careers that this county needs.

  6. Why are admission standards not actually standard? Why is the rule of law not the rule of law? This great experiment of ours will eventually fail if we have no fixed standard to measure anything against. I grew up poor, was a C student and avoided the courses that would have prepared me for college. I did not get accepted to any major university. Sure would have been nice to have had lowered admission standards and preferential status on student loans to attend the college I was accepted to but I didn’t fit the profile. I had no money and no future. So I joined the Navy and made a career of that. I finally did go to college after I had matured and became an A student. We don’t need to lower the standards to fit the path children are on. We need to get children on a different path that fits the standards.

  7. The principle failure in Cara L. Gallagher’s “What happens after race-based admissions policies lose in the Supreme Court?” is the egregious absence of response, as to what precisely, as opposed to subjectively, might be those purported benefits of diversity, as noted in the statement: “to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.”
    In an effort to explain recent student turmoil, some have suggested the push for diversity has resulted in lack of minority student preparation, including lack of basic writing and intellectual skills, as well as the creation of academic inanity (e.g., safe spaces, microaggressions, and trigger warnings), not to mention restricted debate and linguistic autocracy. Some have suggested perhaps too many minority students cannot handle basic university requisites (i.e., reading, riting, and rithmatic), so end up taking fluff courses in minority and transgender studies, for example, which perhaps encourage a degree of apartheid. Are those things really benefits?
    I have argued that we should replace the plethora of deans and departments of diversity and inclusion with deans and departments of democracy that teach the First Amendment and other such fundamental principles. What university today possesses a Dean of the First Amendment or Department of Democracy? Is it not the First Amendment that makes America unique?
    If the “currencies of admissions” are subverted, in accord with Gallagher’s suggestion, then will not the “currencies of academe” be further subverted to produce graduates who cannot spell and cannot write grammatically correct sentences, let alone reason? Will that not further PC-indoctrination at the expense of clarity of thinking, logic and debate? If too many minority students are not privileged (i.e., cannot read and write properly), then rather than decry white privilege and otherwise seek to debase white-skinned people, they need to focus on raising their own abilities. Taking courses in transgender and minority studies will likely not help in that endeavor…

    G. Tod Slone, Founding Editor (1998)
    The American Dissident, a 501c3 Nonprofit Journal of Literature, Democracy, and Dissidence

  8. I say that they should let all those black people in. But Not The Irish!

    Oh, that is a statement from Blazing Saddles.

  9. Exactly, Renegade. This racial profiling is right out of the Nazi playbook. Or South Africa’s aparteid regime.

  10. Having just read a lengthy treatise concerning the growing racial mixing in our country (don’t assume I’m critical of this trend), I have to ask: at what percentage is someone able to claim a minority ethnicity? Most/many Native American nations have specific percentages to qualify. There are a number of celebrities (entertainers, politicos, and others) who appear very European but are said to be Black. We now ask the question differentiating Hispanics (white or non-white).

    What is the ethnicity of an American citizen who is 1/4 of the following–Irish, Cherokee, Gold Coast African, and Mexican? Asians??

    BTW if a grandparent was an Irish immigrant, the person can receive an Irish passport. A man who is Black by appearance has English and Canadian and American and Irish passports

    Racial quotas are fast becoming vestigial out-workings of a bygone era.

  11. The school matters much less than the Education Industry wants folks to believe. For the vast majority of employers, it’s more about the person, not the school.

  12. Interesting dilemma. The post notes that the majority-minority schools tend to be less well-funded, which probably correlates to less academic achievement. But if you’re in the top 10% of that less-competitive school, you get into UT. The question on my mind is how those students fare once they’re enrolled in the state flagship university. Are they competitive with the top 10% of other schools, or are they more prone to fail due to a more intense level of academic competition than they’re accustomed to?

  13. These policies resulted in the black student recently shouting at a faculty member to “SHUT UP!”

    Every day I realize more and more, this nation is basically a dead patient awaiting the doctor to look up at the clock, check the time, and make the legal declaration.

  14. I think that focus should be on examining whether a particular state or university in that state has a history and a recent one, of discrimination. If not then the tests should be much different. Admission policies need not focus on making up for prior crimes.

    Texas probably had a historical segregation posture that they may not have made up for.

    This dog represented humans with a variety of civil rights claims way back in a prior life as a human in the 1970s and 80s. School admission discrimination is a rough area.

    This Supreme Court thinks that we have gravitated into an era in which Jim Crow is long gone. They are wrong. But there is no changing this unless there are new Justices appointed who think different. One problem with the present Court is that it is myopic and spoiled. They all went to Harvard and Yale. Uncle Clarence does not see the error in Georgia ways in days of old or now.
    Trump will give us more conservative Justices. That is the future.

    Welcome back Cara. I was afraid you would not contribute this weekend.

  15. What’s the big deal about attending UT? There are plenty of educational institutions available for anyone who is motivated to attend, brick and mortar, and online. The problem is those who have suffered overwhelming frustration caused by learning disorders. Those are the folks who wind up desperate, using drugs, joining gangs, committing crimes, winding up homeless. Those are the folks who need our attention. The young people who graduate in the upper 50% of their class will be able to find their way.

  16. Texas once had a “Robinhood” program that taxed the rich by raising their taxes to highest amount. Then the state would go to the rich property cities and make them pay the state millions of dollars. Then the state would give those millions to the poorer districts like Wilmer Hutchins ISD and the cities in the poorer school districts didn’t pay the same as the richer cities did.

    It was ruled Un-Constitutional. They taxed me right out of my home before this ruling. My property taxes went from $2,400 annually to about $10,000 and we had to sell our home.

    Did it help the poorer districts? They took the money and would bus kids from Mexico to Texas and educate them. Wilmer-Hutchins was shut down by the TEA because the staff, teachers and educators bought themselves all kinds of trinkets and did not give it to the schools. Theft was all that was achieved.

  17. How about just doing it the old fashioned way. . . STUDY!

    Until you liberals stop giving hand ups and hand outs to minority’s, they will never be able to achieve it on their own and continue to expect hand outs!!!

Comments are closed.