Category Archives: affirmative action

Supreme Court hears arguments in Fisher v. University of Texas

Posted by Guest Blogger in affirmative action, diversity, faculty, students and tagged with , , , , , ,

This is a guest post by Yen Tran, a legal fellow in the AAUP’s Washington office. 

On Wednesday, I attended part of the US Supreme Court’s oral arguments in the case Fisher v. University of Texas.  As a graduate of the University of Texas School of Law, a minority student, a Texas resident, and someone interested in higher education law and civil rights, I was especially interested in hearing the oral arguments in this case.  I arrived at the Supreme Court around six in the morning, and I instantly wished I got there earlier; the impossibly long line wrapped from the steps of the Court to around the side of the Library of Congress across the street.  Although I did not get a seat to see the entire argument (apparently the last person to get a seat arrived at four in the morning, according to an informal survey), I did see two three-minutes segments, and because I was part of the last group admitted from the rotating line, I got to observe almost a half hour of oral arguments.  As a result, I was fortunate enough see the bulk of the Gregory Garre’s argument and all of Solicitor General Donald Verrilli’s argument as they defended the University of Texas admission policy, as well as Bert W. Rein’s rebuttal, who represented Abigail Fisher. Continue reading →

Fisher v. Texas, Part Two

Posted by Ezra Deutsch-Feldman in affirmative action, diversity, students and tagged with , , , , , , , ,

Last week, I wrote about the upcoming Supreme Court case Fisher v. University of Texas at Austin. I recently attended an event sponsored by the ACLU, discussing the upcoming court term, including this case. There are a few unusual elements to the case that I want to talk about this week. Once again I am indebted to Dennis Parker of the ACLU’s Racial Justice Program for explaining these issues and his thoughts on them.

The first is the unusually high number of amicus briefs filed in the case, mostly in support of the university (the AAUP has signed on to one of these briefs). Other briefs on behalf of the school came from:

Sixteen members of the US Senate and sixty-six members of the House of Representatives;

Thirty-eight members of the Texas legislature;

Dozens of Fortune 100 companies;

A bipartisan group of former commissioners of the FCC;

And the United States government itself.

There were many, many more. Read the full list here. The list of interested parties on both sides show that this case is about much more than affirmative action and the college admissions process—it raises questions of what “diversity” means, and what its value is or should be in our society. These questions affect not only schools, but businesses, governments, and individuals.

As Steven Shapiro, the legal director of the ACLU, put it last week, this case makes us confront the very idea of diversity. Is “diversity” just a statistical measure of students’ races? Will we get to the desired amount of diversity by just making sure that the percentages of students of each race match up to what we want? Or rather, is diversity about the student experience—ensuring that students interact with people different from them as they go about their college careers, particularly in the classroom? If it’s the latter, then ensuring diversity in its own way would be part of a school’s academic freedom.

When this case goes before the Supreme Court on October 10, Justice Elena Kagan will not be present. She has recused herself, presumably because her work while solicitor general included working on this case. What that means is that there’s a possibility of a 4-4 split by the eight justices who do hear the case. If that happens, the lower court’s ruling will stand—a win for the University—but there will be no official ruling, and the arguments and logic of the justices will not be able to set precedent for future cases. But for supporters of affirmative action, that would be a much better result than a ruling against the university.

To even get to a 4-4 tie, one of the traditionally conservative justices (Alito, Kennedy, Roberts, Scalia, or Thomas) will have to side with the three non-recused traditionally liberal justices (Breyer, Ginsburg, or Sotomayor). As in so many cases, Justice Kennedy seems to be the most likely swing vote. Kennedy opposed the affirmative action program at the University of Michigan in 2003’s Grutter v. Bollinger decision, but Shapiro speculated that Kennedy’s reasoning was primarily based on the fact that he thought Michigan’s policy was a thinly-veiled quota system. It is very, very hard to argue that the Texas policy is a quota system, since the majority of the students they accept are accepted automatically by virtue of being in the top 10 percent of their high school class. Of course, he may oppose it for another reason.

If five or more justices decide that the Texas policy is unconstitutional, then they will have to decide the question of how much of the Texas admissions policy needs to be revised. Remember that Abigail Fisher, the student who is suing UT in this case, did not automatically get admission by being in the top 10 percent of her class. She applied as part of the secondary policy, which considers race and other factors in filling the remaining slots. It is possible that the justices could decide to keep the top 10 percent policy, but forbid the school from considering race in the secondary process. This would effectively revert the Texas policy back to where it was from 1997-2003.

Or, the justices could go farther, and throw out the entire admissions policy, arguing that even the 10 percent plan was meant to increase racial diversity, and that any attempt to increase diversity is unconstitutional. This would constitute a major setback for affirmative action, and would be surprising, since it would overturn the Grutter decision, which is still less than a decade old.

But it’s hard to guess just how the justices will decide, though it seems reasonable to me to say that the best supporters of the university can hope for is a 4-4 split (I don’t think Alito, Roberts, Scalia, or Thomas will budge on the issue, though I am not a professional court-watcher by any means). Oral arguments will be on October 10, 2012, and transcripts and audio should be available on the court’s website soon after that.

Fisher v. Texas: A Primer

Posted by Ezra Deutsch-Feldman in affirmative action, diversity, students and tagged with , , , , , ,

On October 10, 2012, the United States Supreme Court will hear arguments in Fisher v. University of Texas at Austin, a major affirmative action case that could fundamentally change college admissions for many students. At issue are questions of how schools achieve racial diversity in their student bodies—or if they should even be trying. The AAUP has signed on to an amicus brief by the American Council on Education in support of the University of Texas.

This morning, I attended an event sponsored by the American Civil Liberties Union discussing the case (and other cases expected to be heard in the upcoming term). In this blog post, I will outline the history of the Texas program and the specific circumstances of this case, and next week, I’ll write about the ACLU’s view of the case and how the justices might decide on it. I’d like to thank Dennis Parker, of the ACLU’s Racial Justice Program, for explaining the issues in this case and answering my many questions about it.

The University of Texas has a long history of litigation over issues of race and admissions. After trying to increase the diversity of its student body in the 1980s and 1990s, the university was sued by four white applicants to the UT law school, who were not accepted—because, they say, of their race. The Fifth Circuit court agreed, and, in the 1996 decision in Hopwood v. Texas, ordered the university to stop considering race at all in its admissions. There was an immediate 40 percent drop in the number of African American students at UT the following year.

In 1997, the Texas legislature responded to the Hopwood decision by passing a law that guaranteed admission to the University of Texas for the top 10 percent of every high school’s graduating class. Since then, 60 to 80 percent of UT’s undergraduate classes have been filled by students under this system. To fill the rest of the spots, UT considers a “personal achievement index” of other factors—like extra-curricular activities, personal characteristics, and school leadership positions. The 10 percent plan did increase racial diversity at UT, but not to the levels that had been reached before the Hopwood decision.

Administrators got their chance to increase racial diversity in 2003, after the Supreme Court ruled in Grutter v. Bollinger that schools can take race into account in certain narrow ways. This ruling in practice overturned the Hopwood decision, and, using this new case as justification, UT began to consider race as one of the factors in the personal achievement index.

And that brings us to the current case. In 2008, a Texas student named Abigail Fisher applied to UT. She was not in the top 10 percent of her class, so she did not get admitted automatically under that system. The school then considered her under the secondary, personal achievement system, and declined to offer her admission. Fisher says that this decision was because of her race—that had she not been white, she would have been admitted. She sued the university, saying that because the admissions policy takes race into account, it is unconstitutional.

So far, no court has agreed with Fisher’s argument. A US District Court, a three-judge panel of the Fifth Circuit Court, and the full Fifth Circuit Court have all decided the case in favor of the university. The Fifth Circuit ruled that the Texas system was acceptable under current law and precedent, because it considers each applicant as an individual, with race being just a part of who they are. It does not assign a specific number of extra “points” to students of certain races. It does not have quotas for accepting a certain number of applicants from particular races. In all, the circuit court found that the Texas policy was in keeping with the Supreme Court’s decision in Grutter. Now the Supreme Court will decide for itself whether the current policy violates its precedent—or whether to overturn that precedent and institute stricter rules about how race plays into university admissions.

Next week, I will look more at the case as it stands before the Supreme Court, including the dozens of amicus briefs filed on each side and the possible arguments of some of the key justices. You can also learn much more about the case by reading the documents and articles about it at SCOTUSblog.