Amid increased discussion of race on college campuses across the country, the U.S. Supreme Court heard oral arguments Wednesday in Fisher v. University of Texas, a case that could diminish the use of affirmative action in college admissions processes.
The case considers the legality of institutions of higher education using race as one of many factors when making admissions decisions. Abigail Fisher, a white woman from Texas, is suing the University of Texas at Austin because she believes she would have been admitted to the school if not for her race.
At the time, UT-Austin granted automatic admission to students who were in the top 10 percent of their high school classes, which makes up about 75 percent of UT-Austin’s student body. Though this plan does not explicitly consider race as a factor, it is intended to result in a more diverse collegiate student body since high schools in the state may not be diverse. Fisher did not make this cut at her high school.
The Supreme Court previously heard the case in 2012, when the justices remanded it to a lower court. The case then made its way back up through the court system through the Fifth Circuit Court of Appeals. The Fifth Circuit ruled against Fisher, but that decision was appealed and again sent to the Supreme Court in 2014.
The case follows a line of Supreme Court decisions ruling on the use of affirmative action, including two cases challenging the University of Michigan’s admissions policies. In 2003, the court ruled in Gratz v. Bollinger that the University’s point system for undergraduate admissions was unconstitutional, but that the use of race as one of many factors by the Law School, challenged in Grutter v. Bollinger, was constitutional. However, Michigan voters in 2006 opted to ban the use of race in admissions via a statewide ballot initiative.
Richard Primus, a University professor of constitutional law, said what is currently being presented to the court for consideration is hardly different than what was discussed back in 2012.
“As a substantive matter, there’s very little in this oral argument that didn’t already exist in the paper record,” he said. “People will over-evaluate the oral argument for signals, but most of the time, at least much of the time, that is a mistake.”
Substantively, oral arguments are a forum in which the justices question the counsel of both sides of a case. Primus said in cases that are overwhelmingly technical or nuanced, oral arguments can be very informative for justices, but it is less so here since this is the second time the court is hearing this case.
“Oral argument is least likely to change an outcome in a case like this one,” he said. “Every judge has a well-developed sense of these ideas and a well-developed set of views about these ideas. The information has been thoroughly digested and re-digested. They’re not going to (use the) argument to learn new things.”
Justice Elena Kagan has recused herself from the case, and the court’s four conservative-leaning justices are expected to side with Fisher. Of the four remaining justices, three are expected to side with the University of Texas, and Justice Anthony Kennedy will likely be the swing vote.
In oral arguments, Justice Antonin Scalia, one of the four conservative justices, referred to some beliefs that questioned the place of some minority student beneficiaries of affirmative action at public universities during the oral arguments.
“There are those who contend that it does not benefit African Americans to get them into the University of Texas where they will not do well, as opposed to having them go to a less — a slower-track school where they do well,” he said, according to the transcript of the oral arguments. “One of the briefs pointed out that most of the Black scientists in this country don’t come from schools like the University of Texas.”
Scalia continued, saying African-American students come to colleges from “lesser schools,” and arrive at college to find the classes are too hard for them.
“I’m just not impressed by the fact that the University of Texas may have fewer (African-American students),” he said. “Maybe it ought to have fewer. And maybe some — you know, when you take more, the number of Blacks, really competent Blacks, admitted to lesser schools turns out to be less.”
Gregory G. Garre, legal counsel for the University of Texas, said the court had previously rejected that sentiment.
“If you look at the academic performance of holistic minority admits versus the top 10 percent admits, over time, they fare better,” he said. “And, frankly, I don’t think the solution to the problems with student body diversity can be to set up a system in which not only are minorities going to separate schools, they’re going to inferior schools.”
The University's Black Student Union did not respond to an interview request.
Citing his judicial record, media outlets and academics speculate Kennedy will join the conservative four in a ruling against the University of Texas, but Primus said that projection may be too speculative. In speaking about the utility of the oral argument, he noted Kennedy could also opt to send the case back to the Fifth Circuit.
“If there’s anything in the oral argument that’s fodder for further prediction, it’s the possibility that Justice Kennedy, once again, might like to find a technical way out,” he said. “In his questioning of Fisher’s counsel, he talked about the possibility of sending the thing back to the district court. Later, he seemed to back off that a little bit.”
However, in the event of a tie vote, with Kennedy joining the liberal justices and siding with the University of Texas, the previous Fifth Circuit ruling will prevail.
Media outlets and academics have also been speculating what the court’s decision — due in June or early July — could look like, and what could be the implications of outlawing the race in admissions.
Some have suggested that universities may turn to other forms of affirmative action, such as class-based or socioeconomic-based methods.
Primus said the adoption of class-based systems opens another can of worms, but that the potential effects of such programs to achieve racial diversity could affect the outcome of the case at hand.
“The more Justice Kennedy thinks that race-blind, class-based affirmative action can produce racial diversity, the more likely he is to rule against the University (of Texas) in this case,” he said. “The more he recognizes that such means don’t produce that result, the more likely he is to rule for the university.”
Ann Lin, a professor of public policy at the University, said Fisher’s argument is that 10 percent plans — whereby the top 10 percent of high school graduating classes are guaranteed admission to a state university — like the one at the University of Texas, are preferable to holistic review processes that use factors including race.
“That approach is one that schools like Michigan have always rejected — rejected them because top 10 plans only create (racial) diversity if you have extreme segregation in your state … this works in Texas because Texas is one of the most segregated states in the nation,” she said. “But, it doesn’t work if either you have diverse school bodies in which the top 10 percent of the school doesn’t reflect the diversity of the school, and it also doesn’t work if you have pockets of racial segregation in which the high schools are also of different sizes.”
To that end, Primus said proponents of affirmative action might rationally fear that Kennedy will rule with Fisher against race-based affirmative action, and that the court’s decision will fail to specify the circumstances under which universities are allowed to conduct holistic review, even without the use of race.
“The reason in that circumstance that universities might not be able to do holistic review would be the claim that they could do percentage plans instead,” he said. “And then the whole game would be about arguing that a given university, given its local demographics, or its size or its mission, was not well-suited for the use of a percentage plan.”
Lin said holistic plans allow institutions like the University to be aware of race in admissions, even if they don’t explicitly consider it, and to achieve a broad definition of diversity. She said schools can use other parameters, such as first-generation status, that are correlated with race to reach this diversity.
“If you have a broader definition of diversity, including diversity of skills and talents and socioeconomic status, you cannot get it from a top 10 percent plan,” she said.