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High Court takes a second look at UT Austin’s consideration of race in a portion of its admissions decisions

December 11th, 2015  |  Cynthia L. Hackerott

For a second time, the U.S. Supreme Court heard oral arguments on whether its decisions that interpret the Equal Protection Clause of the Fourteenth Amendment permit the University of Texas at Austin’s (UT Austin) consideration of race in a portion of its admissions decisions. The arguments were highly charged, eliciting some provocative statements by Justice Antonin Scalia and queries from Chief Justice John Roberts about when race should cease to be a consideration in university admissions. Although the case focuses on university admissions, the constitutional analysis could also be applicable to race-conscious decisions in state employment and the awarding of government contracts. (Fisher v University of Texas at Austin, Dkt No 14-981, cert granted June 29, 2015).

This time around, the Court is reviewing a 2014 decision in which the Fifth Circuit, following the High Court’s instructions to apply a more exacting standard on remand, determined that the UT Austin’s consideration of race in a portion of its admissions decisions withstands strict scrutiny. In a 2013 ruling, the High Court found that lower courts had erred in giving deference to the university’s assertion that its consideration of race in the admissions process satisfied the narrow tailoring prong of strict scrutiny (97 EPD ¶44,850) . On remand, a Fifth Circuit panel ruled, 2-1, that UT Austin presented sufficient evidence to prove that its admissions program is narrowly tailored to achieve the compelling state interest of the educational benefits of diversity (98 EPD ¶45,109). In November 2014, the Fifth Circuit denied Fisher’s request for an en banc rehearing. The Supreme Court has granted to cert again to determine whether the Fifth Circuit majority correctly followed the High Court’s instructions in reaching its conclusion.

Relevant precedent. Throughout the oral arguments session on December 9, which was extended by over a half-hour beyond the initially scheduled one hour limit, the Justices repeatedly referenced the relevant precedent. Under the standard set forth by the US Supreme Court in Adarand Constructors Inc v Pena (65 EPD ¶43,366 (1995)), to survive constitutional review, a government entity’s consideration of race has to meet strict scrutiny standards; thus, it must: (1) serve a compelling state interest; and (2) be narrowly tailored to achieve that interest.

Prior to its 2013 decision in the present case, the last time the High Court addressed the issue of affirmative action in higher education admissions was in June 2003 when it upheld, by a 5-4 vote, the University of Michigan’s consideration of race as one of many “plus factors” in its law school admissions policy that considered the overall individual contribution of each candidate (Grutter v Bollinger, 84 EPD ¶41,415). In contrast, on that same day in a 6-3 decision, the Court held that the university’s undergraduate admissions policy, which automatically awarded points to applicants from certain racial minority groups, violated the Equal Protection Clause (Gratz v Bollinger, 84 EPD ¶41,416). Previously in Regents of Univ of Cal v Bakke (17 EPD ¶8402 (1978)), Justice Powell wrote in his solo opinion that the attainment of a “diverse student body” is a compelling state interest for an institution of higher education. The Court endorsed this position in Grutter, and found that the law school’s policy was narrowly tailored to achieve the compelling state interest of a diverse student body, but found in Gratz that the undergraduate policy was not.

Texas policy. In 1997, the Texas legislature enacted the Top Ten Percent Law which is designed to increase diversity without taking race into account. The law, which is still in effect, mandates that Texas high school seniors in the top ten percent of their class be automatically admitted to any Texas state university. In 2004, with the Grutter ruling in mind, Texas added the consideration of race among many factors, including achievements and experiences, to fill remaining slots at public universities. In the present ruling, the Fifth Circuit refers to this aspect of the admissions process as “the holistic review program.” Along with the consideration of race and these other factors, which are used to assign each applicant a Personal Achievement Index (PAI) score, the holistic program also takes into account an applicant’s Academic Index (AI) score, which is calculated based on the applicant’s standardized test scores, class rank, and high school coursework.

Abigail Fisher, a white Texas resident, sued the university after being denied a spot in 2008. Because she did not graduate in the top ten percent of her high school class, she did not qualify for automatic admission under the Top Ten Percent Plan, which that year took 81 percent of the seats available for Texas residents. Rather, she was considered under the holistic review program, and consequently, was one of 17,131 applicants for the remaining 1,216 seats for Texas residents.

Standing. In challenging Fisher’s standing on remand before the Fifth Circuit, the university pointed out that Fisher graduated from another university in May 2012, thus rendering her claims for injunctive and declaratory relief moot. UT Austin also argued that there was no causal relationship between any use of race in the decision to deny her admission and the $100 application fee – a non-refundable expense faced by all applicants – thus, putting into doubt whether Fisher in fact suffered any monetary injury.

Justice Ruth Bader Ginsburg raised the standing issue, asking Fisher’s lawyer, Bert Rein, what relief the plaintiff sought, “I take it not injunctive, because Ms. Fisher has graduated,” she observed.

Rein maintained that a refund of the application fee was in fact one of element of the damages sought. Ginsburg then questioned whether, were the application fee to be refunded, there would still be any remaining damages sought by Fisher.

Fisher “has suffered the consequences of nonadmission,[sic]” Rein asserted, “which include she went to an alternative university; she had to travel as opposed to being in her home State. There is certainly good information that within the State of Texas, a degree from the University of Texas has consequences and earnings down the road, and that’s measurable. And she doesn’t have that benefit.”

Use of race as a factor. As to the merits, Rein argued that UT’s holistic review plan was not like the plan approved in Grutter. “If you have to use race and you want to use the model that was created in Bakke and Grutter, you would need to build profiles of individuals that would allow you to judge them one against another in the context of the class and the educational experience you are trying to create,” Rein asserted.

“My God, that sounds like it’s using race more rather than less than this plan does,” remarked Justice Sonia Sotomayor.

Rein maintained that was not the case “[b]ecause [UT’s holistic review plan is] not used to build a class [of students]. It’s just used to create a racial plus and to increase the number of minority admissions.”

“But in Grutter in both Grutter and what Justice Powell said would be proper in Bakke, race was a factor. Race, itself, was a factor,” Justice Ginsburg observed. “And that’s why I’m finding it very hard to distinguish what the university is doing, apart from the 10 percent plan.”

She added that the 10 percent plan itself was driven by race as well. “It’s totally dependent upon having racially segregated neighborhoods, racially segregated schools, and it operates as a disincentive for a minority student to step out of that segregated community and attempt to get an integrated education,” she said.

Rein countered that the 10 percent plan also creates geographic and socioeconomic diversity. “It’s not based on race,” he said.

“It is created because of race,” Ginsburg responded.

Justice Anthony Kennedy chimed in an assist to Rein, stating that the purpose of the 10 percent plan was “to define a neutral framework within which to satisfy the States and the universities’ objectives.”

Shortly thereafter, Justice Samuel Alito stated his view that the issue in this case is not whether the university can have holistic review, but rather, “whether they can have [race] as a component of holistic review after they have taken into account other characteristics that are not dependent on race; they can add race as an additional characteristic.”

Throughout the course of oral argument Alito queried whether there was a way to determine which of the students admitted under the holistic plan would not have been admitted if race were not part of the determination.

Scalia notes arguments doubting benefits for African Americans. In a series of provocative statements, Justice Scalia referenced arguments questioning the utility of affirmative action. “There are—there are those who contend that it does not benefit African Americans to  — to get them into the University of Texas where they do not do well, as opposed to having them go to a less advanced school, a less—a slower track school where they do well,” Scalia commented to Gregory G. Garre, UT’s lawyer. “[O]ne of the briefs pointed out that —that most of the —most of the black scientists in this country don’t come from schools like the University of Texas.”

“They come from lesser schools where they do not feel that they’re that they’re being pushed ahead in— in classes that are too— too fast for them,” he continued, adding that it may not necessarily be a good thing for the university to “admit as many blacks as possible.”

Garre responded that the court has already heard and rejected such arguments in the Grutter decision. Moreover, “[i]f 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. I think what experience shows, at Texas, California, and Michigan, is that now is not the time and this is not the case to roll back student body diversity in America,” Garre added.

Time limit? Chief Justice Roberts referred to a portion of the majority opinion in Grutter, where Justice O’Connor wrote that race-conscious admissions policies must be limited in time. “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today,” wrote Justice O’Connor.

“[A]re we going to hit the deadline?” Chief Justice Roberts asked Garre.

“Your Honor, I’m not here to give you a date,” Garre replied, “but what I would say is this: There are systematic problems that these problemsthat these policies are attempting to address, including the test score gap between between African-Americans and Hispanics. And and the record in this case overwhelmingly shows that without the addition of race, student body diversity suffered, particularly among African-Americans.”

Roberts continued to press Garre, asking “when do you think your program will be done?”

“[A]s soon as wewe can achieve the same sufficient numbers for the educational benefits of diversity without taking race into account, we will no longer take race into account,” Garre responded, adding that assessing the utility of race neutral alternatives “is the way to police this.”

Justice Elena Kagan recused herself in this matter due to her involvement with the case when she was the U.S. Solicitor General.

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