Supreme Court Upholds Race-Conscious Admissions at UT-Austin

By Mark Walsh — June 23, 2016 6 min read
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[UPDATED June 23 10:35 p.m.]

The U.S. Supreme Court on Thursday upheld the race-conscious admissions program at the University of Texas at Austin, holding 4-3 that the white applicant who challenged the plan was not denied equal protection of the law.

Under the university’s plan, “race is but a factor of a factor of a factor in the holistic-review calculus,” Justice Anthony M. Kennedy wrote for the majority. “Furthermore, consideration of race is contextual and does not operate as a mechanical plus factor for underrepresented minorities.”

Justice Kennedy turned away each argument made on behalf of applicant Abigail Fisher, who was rejected for admission for the incoming class of 2008, that the university’s system violated the 14th Amendment. The case of Fisher v. University of Texas at Austin (Case No. 14-981) has been watched closely not only by colleges but by K-12 educators for what it may mean for the consideration of race at all levels of education.

“A university is in large part defined by those intangible ‘qualities which are incapable of objective measurement but which make for greatness,’” Kennedy said, quoting a landmark 1950 decision on desegregation in higher education, Sweatt v. Painter. “Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission. But still, it remains an enduring challenge to our nation’s education system to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity.

The decision came as the high court neared the end of its term and also deadlocked in a major case on immigration that has implications for schools.

The majority opinion in Fisher was joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer, and Sonia Sotomayor.

Justice Samuel A. Alito Jr. wrote a vigorous dissent, from which he read at length from the bench.

“This is affirmative action gone berserk,” he said of the university’s plan. He was joined by Chief Justice John G. Roberts Jr. and Justice Clarence Thomas.

“Even though UT has never provided any coherent explanation for its asserted need to discriminate on the basis of race, and even though UT’s position relies on a series of unsupported and noxious racial assumptions, the majority concludes that UT has met its heavy burden,” Alito said in his 51-page written dissent. “This conclusion is remarkable—and remarkably wrong.”

Thomas wrote a short separate dissent to reiterate his view that “a state’s use of race in higher education admissions decisions is categorically prohibited by the equal-protection clause.”

Justice Elena Kagan took no part in the case, presumably because the Obama administration was a participant in it when she was U.S. solicitor general.

A Narrow Decision?

Gregory L. Fenves, the president of UT-Austin, said in a statement that he was “thrilled and gratified by today’s ruling that recognizes the constitutionality of the university’s admissions policy. The court has affirmed UT’s efforts to develop a diverse student body that brings with it educational benefits for all students.”

U.S. Secretary of Education John B. King Jr. praised the ruling in a statement, saying that the Education Department “The Department will continue to be a strong supporter of diversity and will work to ensure that all students benefit from school environments as diverse as America itself. As a nation, we are stronger together.”

Fisher, who ended up graduating from Louisiana State University in Baton Rouge, said in a statement released by the Project on Fair Representation, the Arlington, Va.-based organization that backed her challenge, that “I am disappointed that the Supreme Court has ruled that students applying to the University of Texas can be treated differently because of their race or ethnicity. I hope that the nation will one day move beyond affirmative action.”

Edward Blum, the president of the Project on Fair Representation, said in a statement that “racial classifications and preferences are one of the most polarizing policies in America today. As long as universities like the University of Texas continue to treat applicants differently by race and ethnicity, the social fabric that holds us together as a nation will be weakened.”

Roger B. Clegg, the president and general counsel of the Center for Equal Opportunity, a Washington group that also opposes affirmative action, said in a statement that he was disappointed with the decision because “such discrimination is untenable in our increasingly multiracial, multiethnic society—indeed, a society where individual Americans are more and more likely to be multiracial and multiethnic, and where the victims of this politically correct discrimination are more and more likely to be members of racial and ethnic minority groups.”

“But today’s decision is a narrow one, and leaves plenty of room for future challenges to racial preference policies at other schools,” he added.

In his majority opinion, Justice Kennedy seemed to suggest that the decision was indeed narrow. He focused on the role of the Top Ten Percent plan in UT’s admissions. That plan, a state legislative enactment that grants automatic admission to any state campus to those who finish at the top of their high school classes, has been taken as a given since its implementation in 1998, Kennedy said, creating somewhat of an “artificial” landscape for admissions at UT-Austin.

“The fact that this case has been litigated on a somewhat artificial basis ... may limit its value for prospective guidance,” Kennedy said.

He stressed that the university has a continuing obligation to satisfy the burden of strict scrutiny of its race-conscious program by responding to “changing circumstances.”

“The University of Texas at Austin has a special opportunity to learn and to teach,” Kennedy said. “The university now has at its disposal valuable data about the manner in which different approaches to admissions may foster diversity or instead dilute it. The university must continue to use this data to scrutinize the fairness of its admissions program; to assess whether changing demographics have undermined the need for a race-conscious policy; and to identify the effects, both positive and negative, of the affirmative-action measures it deems necessary.”

Leaders from K-12 education praised the ruling and stressed the value of racial diversity at all levels of education.

“We do not live in a color-blind society, and race still matters,” Lily Eskelsen García, the president of the National Education Association, said in a statement. “When it comes to public education—whether it’s preschool or graduate school—racial classifications continue to carry great weight. If we’re serious about ensuring every child has access to a great public school, no matter his or her ZIP code, then we must uphold diversity programs because there is no question that they serve a compelling state interest.”

Thomas J. Gentzel, the executive director of the National School Boards Association, said in a statement: “Diversity positively affects learning outcomes for all students and benefits schools, communities, and our country as a whole.”

A version of this news article first appeared in The School Law Blog.