Abigail Fisher sued the University of Texas, Austin, arguing that UT’s admissions policies violate the Equal Protection Clause of the XIVth Amendment. Abigail Fisher is white. UT automatically accepts Texas residents who graduate in the top 10% of their high school class, irrespective of race or ethnicity. After that, UT admits students relying on multiple factors, including race and ethnicity, to fill out the class. Fisher was not in the top 10%, so had to compete with everyone else (athletes, alumni kids, African Americans, Latinos, disabled students, etc.) to get a spot. She did not succeed, and matriculated at an institution in another state, from which she is about to graduate. Fisher lost her case in the lower courts, and the Supreme Court has decided to review it next fall.
Fisher is arguing that UT’s policies exceed the narrow use of race and ethnicity to achieve a diverse educational environment that the Supreme Court approved in Grutter v. Bollinger. Fisher is also arguing that Grutter should be overturned. Justice O’Connor, now retired, authored the 5-4 decision in Grutter. She has been replaced by Justice Alito. Three of the four dissenters (Kennedy, Scalia and Thomas) remain on the Court. One, Justice Rehnquist, has been replaced by Chief Justice Roberts. It is not hard to imagine five Justices voting to ban all use of race and ethnicity for all purposes in the admissions process.
What might persuade one or more of the five to pull up short from ending all forms affirmative action in higher education? In Grutter, the military and several business organizations submitted influential briefs supporting the benign use of race consciousness to build more diverse, responsive, and better work forces. Maybe what worked before will work again? I am not betting on it. Another possibility is that educational administrators will paint a vivid picture of the context-based nature of the admissions process, which (1) relies on race and ethnicity only as plus factors in a holistic evaluation of the candidate, and (2) does not place any greater weight on those plus factors than it does on others (e.g, class, alumni status, athleticism, etc.), and (3) evaluates how the applicant’s race and ethnicity has shaped her experience in such a way as to augment the educational environment. If educational institutions can get these points across clearly, then they can make the subsequent one, which is that banning all reference to race and ethnicity will essentially impose a form of censorship on admissions offices that applies only with respect to this one characteristic. Admissions committees will be able to talk about everything except race and ethnicity that might have shaped an applicant’s experience, from the trivial (how the applicant was traumatized when she lost the fourth grade spelling bee) to the profound (how the applicant graduated from high-school despite taking care of her three younger siblings and working 20 hours/week.) Sounds convincing to me. But for the target audience, the odds seem even worse on this one.
What about this? Within the last five or so years, girls have been surpassing boys in educational achievement. The new pro-girl gender gap has caused some colleges to admit lower-achieving boys in the interest of “balancing” the class. If the Court bans all forms of affirmative action in University admissions, will their sons, grandsons, and nephews face the consequences? One way to keep affirmative action for boys, while still killing it for members of racial and ethnic minorities, would be to rely on the intermediate standard of review that applies to classifications based on gender. But is it possible that at least one Justice (ok, Kennedy), might have a twinge of conscious about this? Can it really be alright to allow “balancing” for boys, who have not suffered systematic forms of exclusion, discrimination, or implicit bias, but to disallow a similar flexible admissions approach for racial and ethnic minorities? For some, the answer will be “oh, sure it is!” But maybe, just maybe, one fellow in DC will wonder… is this distinction defensible, can I stomach it?