BY MICHAEL A. OLIVAS
This is a guest post by Michael A. Olivas, the William B. Bates Distinguished Chair in Law at the University of Houston Law Center. The most recent of his fifteen books is Suing Alma Mater: Higher Education and the Courts (Johns Hopkins University Press, 2013). He hosts a weekly NPR radio show, “The Law of Rock and Roll.” He served two terms as AAUP General Counsel.
Olivas comments on the June US Supreme Court decision in Fisher v. University of Texas at Austin, a case in which the AAUP joined an amicus brief submitted by the American Council on Education and thirty-seven other higher education organizations. Visit the AAUP website for more information about the case.
The US Supreme Court finally drove a stake through the heart of the discredited claim by Abigail Fisher, a white student, that she was illegally discriminated against in her unsuccessful application in 2008 to the University of Texas at Austin.
The decision in Fisher v. University of Texas at Austin let stand the trial court and Fifth Circuit opinions that had held she was treated fairly in her application. She was not admissible to the university through the percent plan that accords automatic admission to Texas high school students who graduate near the top of their classes. Nor was she admissible through special admissions full-file reviews.
In a state where whites are a declining proportion and total number of the public school population, the Plan was sure to spread out the applicants and enrollees. But it was not at all clear it would do so disproportionately for students of color, and it did not ultimately do so. The after-the-fact quarterbacking that now seems afoot is simply wrong. This plan was not race-specific; rather, it was crafted to survive the hostile post-Hopwood politics and potential legal challenges, and it was intended to reduce the effect of the standardized tests on the system. To describe it as race-neutral is particularly appropriate in its as-applied optics, as over half of all students admitted under the Plan (now reduced to less than ten percent for UT-Austin, after the campus received an exemption on the grounds that the enrollment under the original Plan had swamped them and left them with no room for discretionary admits) have been white, in a state where whites constitute only slightly more than thirty percent of the total public school enrollment (if Latinos did not drop out of school at such an alarming rate, the percentage of white students would be even lower).
The Court’s 2003 ruling in Grutter v. Bollinger had held that an educational institution could consider an applicant’s race if it did so through such means. In states where there are no prohibitions on racial admissions, why would UT be the only institution in the country ineligible to follow Grutter?
Fisher’s claim, which did not challenge the percent plan directly, still tried to have it both ways. Even if I cannot be admitted through a nonracial percent plan program, she was basically saying, and even if I am not qualified to be admitted through the discretionary option, I must have been denied my rightful place by less qualified students of color. This entitlement argument is the dictionary-perfect example of a claim of white privilege.
The bottom line? “Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission.” At the same time, SCOTUS called on UT to regularly evaluate data and consider student experience in order to “tailor its approach in light of changing circumstances, ensuring that race plays no greater role than is necessary to meet its compelling interest. The university’s examination of the data it has acquired in the years since petitioner’s application, for these reasons, must proceed with full respect for the constraints imposed by the Equal Protection Clause. The type of data collected, and the manner in which it is considered, will have a significant bearing on how the university must shape its admissions policy to satisfy strict scrutiny in the years to come.”
No admissions policy since 1978’s Regents of the University of California v. Bakke decision has prompted as much study and data analysis as has this series of cases and Fisher’s claim. And as with any comprehensive admissions policy, it will certainly continue to be evaluated.
This case has threatened to become like Dickens’s Jarndyce v. Jarndyce, dragging on for generations, but it is now time to move on. That is what I do when I lose cases, as in the same day’s disappointing Texas v. U.S. that allows a Brownsville federal judge’s improvident injunction of President Obama’s Deferred Action for Childhood Arrivals and Deferred Action for Parents of Americans and Lawful Permanent Residents programs. I will live to fight another day on this case, and Abigail Fisher and her lawyers should also give it a rest. Inadmissible under any circumstances and graduated from another state’s flagship, what remedy would she have claimed? And if she was so set on attending a low cost public Texas college, why didn’t she just apply elsewhere?
This decision restores constitutional order to college admissions, and the court should stop accepting such false claims. The last time a minority applicant of color successfully challenged admissions practices was, ironically, Sweatt v. Painter, more than 65 years ago, when the court examined and struck down the racial exclusion then practiced by the same institution.
I end on this note. No matter this ultimate result in Fisher, I am confident that minority-related cases will be brought with regularity when whites are more readily recognized as not constituting the majority. Through too many twists and turns, this applicant and her supporters have in essence laid a claim to minority status, even as their numbers belie any discernible disadvantage. Fortunately, the Court saw through to the truth of the matter. Affirmative action lives on, for now.
© Michael A. Olivas, 2016. An earlier version of this op-ed appeared in Inside Higher Ed.