Fisher v UT: diversity in college admissions upheld, but for how long?

The U.S. Supreme Court barely upheld continued use of diversity in college admissions but affirmative action may not last much longer Photo: Associated Press/Susan Walsh

WASHINGTON, DC June 25, 2013 - Many have already hyperanalyzed the U.S. Supreme Court’s decision yesterday in Fisher v. University of Texas in which a white woman denied admission to the University said its policies of considering race among many other factors was impermissible and violated the 14th Amendment’s Equal Protection Clause.

Fisher did not qualify for admission to UT under its Automatic Admission to the top 10% of all high school graduating classes.

She also was not admitted under a second-tier policy in which those not meeting a minimum SAT/ACT score and GPA threshold could be considered for admission among a menu of diversity and holistic factors. This second-tier standard looks at the applicant as a whole and her/his possible contribution to the student body.

Race is one issue considered, as is military service, honors and awards, extracurricular or community activities, publications, history of overcoming disadvantage, personal essays, leadership qualities, extracurricular activities, community service, family responsibilities, family and school socio-economic status, whether the applicant comes from a single-parent home, whether she worked during high school, whether languages other than English are spoken in her home, and other factors.

So despite being the child of two alums of UT and having her heart set on admission, Fisher was not admitted. She did not blame those who got in on non-racial factors. Rather, she headed to court to claim rights under a clause created to protect African Americans from being discriminated against as was the case in Jim Crow South and historically. Oh the irony.

UT, like other colleges, believes diversity is a valuable criteria for higher education.

The 1978 University of California v. Bakke  US Supreme Court case was the first to recognize the value to diversity in higher education and that it was a compelling state interest.  The Supreme Court upheld this notion in subsequent cases, Grutter v. Bollinger in 2003 and Parents Involved in Community Schools v. Seattle School District No. 1 in 2007.

The Supreme Court issued the opinion and essentially punted on procedural and substantive grounds, saying the Fifth Circuit Court of Appeals that upheld the UT admission policy did so under the wrong standard. The standard when race is used as a factor in college admission for benefit is “strict scrutiny”: The government must prove that the law is narrowly tailored to meet a compelling state interest.

The earlier body of affirmative action cases have consistently established and upheld that universities should have the discretion in applying its own means of pursuing an interest in advancing diversity as part of its compelling interest it seeks to advance. Schools still have to narrowly tailor their policies to advance that interest.

The court upheld diversity as a compelling, but said the lower court did not apply the strict scrutiny test. Rather, the court simply inquired if the policy was in good faith and required the appellant to rebut that presumption.

Justice Elena Kagan recused herself from the case because she was involved with the case in the lower levels as Solicitor General of the U.S.

More liberal leaning justices Sonia Sotomayor and Stephen Breyer joined the more conservative leaning Justices Antonin Scalia, Clarence Thomas, Samuel Alito and Chief Justice John Roberts to vote in favor of kicking the case back down, while Justice Ruth Bader Gingsburg dissented.

Ginsburg said the court should simply have upheld the UT’s policy point blank, noting that there is really no such thing as a race neutral policy.

“I have said before and reiterate here that only an ostrich could regard the supposedly neutral alternatives as race unconscious,” Gingsburg said of Texas’s “top 10% plan” granting admission to students in the top 10% of each high school, noting that it was specifically designed to capitalize on the state’s highly segregated school systems. “It is race consciousness, not blindness to race, that drives such plans,” Ginsburg wrote.

Justice Thomas joined solely because he agreed Strict Scrutiny should have been applied but he wrote a concurring opinion essentially saying there is no value in increasing diversity at schools and that he would overrule Texas’s 10% plan altogether and overruled Gutter at the same time which allows universities to even consider diversity as an animus in crafting admission policies.

Associate Justices Clarence Thomas and Antonin Scalia.

The case is a minimal win for affirmative action because the majority opinion noted that diversity is still a compelling interest. It could further be a win for affirmative action if the University is able to make its case that permitting race as one of many “plus factors” it uses when considering admitting those without the numerical minimum for an auto-admit is a narrowly tailored approach at the federal level.

If it cannot make this showing, anti-affirmative action proponents will essentially have won because that means it will be even harder to craft a policy that can withstand scrutiny. The implications could  trickle down to undo some workplace policies as well.

Businesses that receive government grants, contracts or funding could be forced to adjust, change or altogether dismantle their affirmative action or diversity in contracting policies. But then, they would be able to breathe a sigh of relief over their fear of getting sued by whites denied benefits or contracts citing reverse discrimination.

Notwithstanding, these employers would still be subject to EEOC laws and rules which protect minorities and women from discriminatory hiring, promotions and workplace practices.

However, affirmative action and UT will lose if on remand Fisher can show the school leans on race when the school population has a racial imbalance that administrators think is too exclusionary of racial minorities  and that it then accept more of those with the racial “plus factor” to readjust that balance to be more racially diverse.

There is a likely propensity that this rebalancing occurs although it is neither published nor acknowledged.

We will then get into the scenario of a federal judge being left to interpret and read more into schools’ actions and construe their own conclusions.

No doubt this outcome will be colored by their inherent already existing perceptions and prejudices, but we will never know.

These issues will forever be complex and unresolved, even after a decision is handed down.

The best result would be for the courts to continue to defer to Universities, but of course that will not pacify affirmative action opponents. 

 


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Jeneba Ghatt
Jeneba Jalloh Ghatt is a former journalist turned lawyer turned citizen journalist. Currently, she manages her boutique communications law firm, where she has represented small businesses and nationally-recognized civil and consumer rights organizations before the United States Supreme Court, federal courts and the FCC. She also covers the White House and US Congress for the online news site Politic365.com while authoring her own influential blog JenebaSpeaks.com which is frequently accessed by top policy makers and think tanks, and the investment community. JenebaSpeaks.com focuses on the intersection of politics and technology and reports on policies and rules in the communications and tech sector.
 
Before opening her law firm, The Ghatt Law Group, which was the first communications firm owned by women and minorities, Jeneba regulated Comcast and Starpower as the Assistant General Counsel for the District of Columbia's Office of Cable Television and Telecommunications, and at one point was the only communications regulatory attorney in the entire city. She is founding member and policy chair for a new trade association, the National Association of Multicultural Digital Entrepreneurs and provides advice and counsel to new businesses in the tech industry, particularly small businesses owned by women and minorities.

Born in Sierra Leone, West Africa, but raised in the United States by her Catholic mom and Muslim dad, she started her college career creating web content for one of the earliest websites in history while working part time for the University of Maryland's Office of Technology. Following her graduation from the Catholic University of America, Columbus School of Law, she founded and co-wrote one of the earliest blogs and since then has gone on to found and author six different widely read and influential blogs. She was one of only 22 writers and bloggers to attend the first White House summit for African American media.
 
She holds a Certificate in Communications Law Studies from Catholic; a Juris Doctor from there as well, and a Master of Law in advocacy degree from the Georgetown University Law Center where she first taught and lectured as a Staff Attorney and Graduate fellow at that law school's Institute for Public Representation. She later went on to teach Media Law at the University of Maryland at College Park and guest lecture at Yale Law School and Penn State University, College of Telecommunications. She is well skilled and versed with social media and manages several Twitter, Facebook, Linked In accounts and groups.
 
She sits on the board of several non profits and trade associations.

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