Karen Kidd Jul. 12, 2016, 9:44am


WASHINGTON (Legal Newsline) – The recent U.S. Supreme Court decision to uphold the University of Texas' race-based admissions policy is a disappointment to Pacific Legal Foundation, which maintains the practice is unconstitutional, a foundation attorney said during an interview this week.

"PLF has long argued that the University of Texas’ race-based admissions policy was unconstitutional," Joshua P. Thompson, a principal attorney at Pacific Legal Foundation's national headquarters in Sacramento, Calif., said.

"A university should not be able to resort to race-based admissions when race-neutral policies have proven to be workable and effective."

Colleges and universities may do exactly that, according to the high court's decision late last month in Fisher v. University of Texas. With its 4-3 vote, the U.S. Supreme Court upheld the University of Texas-Austin's affirmative action program.

"The University’s program is sui generis," Justice Anthony Kennedy said in the court's majority opinion, with sui generis meaning "of its own kind" or "unique," basically saying the University of Texas' race-based policies in its admissions program is unlike any other. "Unlike other approaches to college admissions considered by this Court, it combines holistic review with a percentage plan."

That approach created an unusual consequence in the case, Kennedy wrote.

"The component of the University’s admissions policy that had the largest impact on petitioner’s chances of admission was not the school’s consideration of race under its holistic-review process but rather the Top Ten Percent Plan," he wrote.

"Because petitioner did not graduate in the top 10 percent of her high school class, she was categorically ineligible for more than three-fourths of the slots in the incoming freshman class. It seems quite plausible, then, to think that petitioner would have had a better chance of being admitted to the University if the school used race conscious holistic review to select its entire incoming class."

Put more simply, the high court ruled that it's OK to use race as a determining factor in its admissions policies, Thompson said.

"The court ruled as it did because it is convinced that in limited circumstances universities should be able to use skin color to enhance the diversity on campus," he said.

Joining Kennedy to form the majority were justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor. The court remains short-staffed after the death of Justice Antonin Scalia in February but was another justice short in the Fisher case.

Justice Elena Kagan recused herself because she was Solicitor General when the U.S. Department of Justice filed an amicus curiae brief in the Fisher case when it was before U.S. Court of Appeals for the Fifth Circuit. 

The high court's June decision is being called "Fisher II" in court documents because this was the second time that the high court took up the case. The high court's previous ruling in the case is being called "Fisher I".

The Fisher case is rooted in 1997 legislation enacted by the Texas legislature that requires the University of Texas admit all high school seniors in the top 10 percent of their high school classes.

While abiding by that legislation, university administrators noted differences in the racial and ethnic makeup in the University of Texas' undergraduate population and the state's population. As a result, university administrators modified its race-neutral admissions policy.

The university continued to admit all in-state students in the top ten percent of their high school classes, as required by the 1997 legislation. The rest of the incoming in-state freshman class was filled based on with an academic index of an applying student's SAT score and high school performance, and a personal achievement index of numerous factors, including race.

This caused difficulties for Abigail N. Fisher, a Caucasian woman, when she applied for undergraduate admission to the university in 2008. She had not been in the top 10 percent of her class, which meant she had to compete for admission among the much tighter field of in-state applicants and race could not be used as an admissions factor in her case. The university denied her application.

Fisher sued the university, claiming its admission's process put her and other Caucasians at a disadvantage and is a violation of the Equal Protection Clause of the U.S. Constitution. The District Court entered summary judgment in the University’s favor, which later was affirmed by the Fifth Circuit, which Fisher appealed.

The Supreme Court heard oral arguments for the first time in the case in October 2012 and handed down its 7-1 decision the following June, vacating and remanding. Ginsburg was the lone dissenter.

Writing for the majority, Kennedy wrote that the Fifth Circuit failed to apply strict scrutiny when it affirmed the university's admissions policy. Instead, he wrote, the Fifth Circuit held that Fisher could only challenge "whether the University's decision to use race as an admissions factor 'was made in good faith.'

On remand, Fifth Circuit again found in favor of the university and then refused Fisher's request for a rehearing. Fisher then, again, appealed to the U.S. Supreme Court, which last summer agreed to hear her appeal. Oral arguments were heard this past December.

"Something strange has happened since our prior decision in this case," Justice Samuel Alito said in his dissent for the U.S. Supreme Court's decision handed down in the case last month. He referred to the high court's ruling in 2013, Fisher I.

"In that decision, we held that strict scrutiny requires the University of Texas at Austin (UT or University) to show that its use of race and ethnicity in making admissions decisions serves compelling interests and that its plan is narrowly tailored to achieve those ends. Rejecting the argument that we should defer to UT’s judgment on those matters, we made it clear that UT was obligated (1) to identify the interests justifying its plan with enough specificity to permit a reviewing court to determine whether the requirements of strict scrutiny were met, and (2) to show that those requirements were in fact satisfied.

"On remand, UT failed to do what our prior decision demanded. The University has still not identified with any degree of specificity the interests that its use of race and ethnicity is supposed to serve. Its primary argument is that merely invoking 'the educational benefits of diversity' is sufficient and that it need not identify any metric that would allow a court to determine whether its plan is needed to serve, or is actually serving, those interests. This is nothing less than the plea for deference that we emphatically rejected in our prior decision.

"Today, however, the Court inexplicably grants that request."

Chief Justice John Roberts and Justice Clarence Thomas joined in Alito's dissent.

The same day the U.S. Supreme Court issued its ruling in the Fisher case, Pacific Legal Foundation issued its own press release, promising it would "continue to litigate for color-blind equal rights and equal opportunities."

It is not clear how much an impact the decision will have, Thompson told Legal Newsline.

"The Court itself explained that the factual scenario in this case was 'sui generis' and that it should not be seen as providing much guidance in cases where the factual circumstances are different," Thompson said.

"Furthermore, because of Justice Scalia’s passing and Justice Kagan’s recusal, only seven of nine Supreme Court justices ruled on the case. In the coming years, as more justices retire and new justices are appointed, the makeup of the court is likely to be radically different, and on highly politicized issues - like racial preferences - that can significantly undercut the precedential value opinions."

Other cases now making their way through the courts also will need to be heard, Thompson said.

"There are two cases in the district court right now challenging racially preferential university admissions," he said.

"The first is nearly identical to Fisher, challenging the racial preferences at the University of North Carolina. The second case challenges the race-based admissions at Harvard, but it is challenging the admissions practices under Title VI of the Civil Rights Act of 1964, not the Equal Protection Clause."

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