In addition to handing down the final opinions of its term, the Supreme Court yesterday agreed to wade yet again into the thorny issue of affirmative action in higher education admission, accepting for appeal a case related to one that it had heard two years ago but largely avoided ruling on the merits:
WASHINGTON — The Supreme Court agreed on Monday to take a second look at a challenge to the use of race in admissions decisions by the University of Texas at Austin, reviving a potent challenge to affirmative action in higher education.
When the court last considered the case in 2013, supporters of affirmative action were nervous. But the court kicked the can down the road in what appeared to be a compromise decision.
In returning to the case, the court signaled that it might be prepared to issue a major decision on the role race may play in government decision making.
In 2013, Justice Anthony M. Kennedy, writing for the majority, said the appeals court had been insufficiently skeptical of the program, which has unusual features. The appeals court then endorsed the program for a second time.
Most applicants from Texas are admitted under a part of the program that guarantees admission to the top students in every high school in the state. (This is often called the Top 10 program, though the percentage cutoff can vary by year.)
The Top 10 program has produced significant racial and ethnic diversity. In recent years, about 25 percent of freshmen who enrolled under the program were Hispanic, and 6 percent were black.
The remaining Texas students and those from elsewhere are considered under standards that take account of academic achievement and other factors, including race and ethnicity. Many colleges and universities admit all of their students on such “holistic” grounds.
In 2003, in Grutter v. Bollinger, the Supreme Court endorsed such holistic admissions programs, saying it was permissible to consider race as one factor of many to achieve educational diversity. Writing for the majority in the Grutter case, Justice Sandra Day O’Connor said she expected that “25 years from now,” the “use of racial preferences will no longer be necessary.”
The question in the Texas case was whether its flagship state university was entitled to supplement its race-neutral Top 10 program with a race-conscious holistic one.
The Supreme Court’s 2013 decision in Fisher v. University of Texas reaffirmed that educational diversity is an interest sufficient to overcome the general ban on racial classifications by the government. But it added that public institutions must have good reasons for the particular methods they use to achieve that goal.
Colleges and universities, Justice Kennedy wrote, must demonstrate that “available, workable race-neutral alternatives do not suffice” before using race in admissions decisions.
After the Justices remanded what I suppose must now be called Fisher I to the lower courts, the Fifth Circuit ended up upholding the University’s admission plan:
Last year, in its second encounter with the case, a divided three-judge panel of the United States Court of Appeals for the Fifth Circuit, in New Orleans, ruled that the Texas admissions plan satisfied strict scrutiny.
“We are persuaded that to deny U.T. Austin its limited use of race in its search for holistic diversity would hobble the richness of the educational experience,” Judge Patrick E. Higginbotham wrote for the majority.
The Top 10 program is inadequate, he said, because it is a blunt instrument and a product of the fact that many Texas high schools are largely segregated.
“While the Top 10 percent plan boosts minority enrollment by skimming from the tops of Texas high schools,” Judge Higginbotham wrote, “it does so against this backdrop of increasing resegregation in Texas public schools, where over half of Hispanic students and 40 percent of black students attend a school with 90 percent-100 percent minority enrollment.”
In dissent, Judge Emilio M. Garza said the university’s justifications for using race were “subjective, circular or tautological.”
Lyle Denniston puts what is likely to be one of the most high-profile cases of the next term into perspective:
The new review of the University of Texas case, like the Court’s prior ruling on it two years ago, will be made by an eight-member Court. Justice Elena Kagan is again not taking part, probably because she was serving in the Obama administration when it was involved in the Texas case earlier.
After the Court, in its seven-to-one ruling in 2013, told the U.S. Court of Appeals for the Fifth Circuit to apply a more demanding analysis to the Texas plan, the Fifth Circuit once again upheld it, rejecting the challenge by Abigail Fisher, the white woman from Sugar Land, Texas, who has claimed that the university denied her application for admission five years ago because of her race.
Fisher’s lawyers filed a new appeal, arguing that the Fifth Circuit did not carry out the Court’s orders, and that it actually introduced a new level of race bias into the admissions process by accepting the view that students who graduated from racially segregated high schools in Texas lack sufficient educational qualifications to contribute to racial diversity at the university.
Fisher’s petition put its primary focus on the claim that the Fifth Circuit once again deferred to university officials’ argument that they needed to use race as one factor in making admissions decisions, when the Supreme Court had ordered the appeals court to independently judge the need for any use of race.
The university actually uses two plans in choosing its incoming class. First, it assures automatic admission to any student who graduated in the top ten percent scholastically of the graduating class at a Texas high school. That mode has controlled about eighty percent of first-year admissions. Second, to fill the remaining seats, the university judges a wide array of applicants’ qualifications, and at that point does take race into account as one factor among them.
The new appeal argued that the Fifth Circuit, in concluding that the university did need to go to the second formula, based that view upon its discriminatory perception of the educational promise of students admitted under the so-called Top Ten Percent Plan. That, the petition contended, “is the very ill that the Equal Protection Clause [of the Fourteenth Amendment] seeks to banish.
While the new petition does not explicitly ask the Court to overrule the Grutter precedent, it suggested that, if the Texas plan is found to satisfy the Grutter decision, then that precedent should be reexamined and overruled. The customary rule of respecting prior precedent, Fisher’s lawyers argued, has less force when an issue of race is involved.
The Court will hold oral argument in the case, perhaps next December, and will decide it later in the new Term.
The whole issue of affirmative action in higher education has been one that the Justices have, often reluctantly, dealt with for nearly forty years now and that they’ve generally succeeded in doing is dancing around the edges of the issue without really coming down on one side or the other. The dancing started with Regents of the University of California v. Bakke in 1978. While the Court did not fully reject the idea of race-based admissions policies in Bakke, it also didn’t completely approve it either, a mixed holding that seemed to suggest that universities could have policies that took race and ethnicity into account but that anything that resembling quotas. The problem was that the opinion wasn’t very specific about where the difference between permissible race conscious and impermissible quotas might actually lie. What followed the Bakke decision was a long era in which admissions authorities tried to determine what exactly is acceptable under the 14th Amendment’s Equal Protection Clause which, as a general rule, bars race-based discrimination by government entities, including public universities. The Court didn’t provide much guidance on the issue in the intervening years until a 2003 case called Grutter v. Bollinger where the Court upheld an affirmative action policy in place at the University of Michigan Law School that used race as a factor with the purported goal of increasing class diversity. The decision still didn’t necessarily resolve many of the questions left by Bakke and it especially left many conservatives unsatisfied to the point where many hoped that the opportunity to deal with the issue head-on would finally arrive once Justice Sandra Day O’Connor, who was the deciding vote in Grutter, retired. This is why the original Fisher case received so much attention since it was seen as an opportunity to at least significantly curtail the ability of public universities to use race as an admissions criteria. When the Court issued its opinion, though, it was one that didn’t really satisfy either side since all it really did was punt the issue back to the lower courts. In the intervening years, it’s been reported but not confirmed that Justice Kennedy had drafted an opinion that would have widely rejected most of the University of Texas’s program but he was unable to hold a majority together. Now, the case will be back before the Court.
One anticipates that the Justices won’t be able to punt this case as they did in 2013, so there’s going to be some kind of ruling on the merits. In that respect, it’s important to note that Justice Kagan will once again not be participating in the consideration of this case given the fact that she was involved with the Federal Government’s handling of it when she served as Solicitor General before being elevated to the Court. Strictly from a nose counting perspective, this would seem to be bad news for the University of Texas since Kagan would be expected to vote with Justices Ginsburg, Sotomayor, and Breyer on the underlying issues in these cases and Justice Kennedy has previously expressed skepticism over race-based admissions programs as evidenced by the fact that he was in the minority in Grutter that would have struck down the University of Michigan’s program. This is the same dynamic that existed the last time the Court heard the case, of course, so its unclear what that means going forward, but it seems likely that a decision that restricts Grutter or even overturns it outright is not beyond the realm of possibility. In any case, this case will be argued early in the October 2015 Term, but if 2013 is any indication it could be many months before the Court hands down a decision.
