The U.S. Supreme Court on Monday agreed to step back into the debate over affirmative action in higher education, granting review of an appeal by a white applicant who is challenging a race-conscious admissions plan.
After weighing the appeal internally for several weeks, the justices granted review in Fisher v. University of Texas at Austin (Case No. 14-981) in a brief order on the last formal day of their term.
At issue in the case is whether the UT campus’ “holistic review” program, which potentially takes an applicant’s race into account for roughly one-quarter of the places in the entering freshman class, passes the highest level of constitutional scrutiny that can be applied by the courts, known as “strict scrutiny.”
In its 2013 decision in the Fisher case, the Supreme Court had demanded that a federal appeals court apply the “strict scrutiny” standard to the UT plan. Writing for the majority in that decision, Justice Anthony M. Kennedy had said the appeals court could not accept the university’s own assertions that its admissions plan used race in a permissible way.
Last July, on remand from the high court, a panel of the U.S. Court of Appeals for the 5th Circuit, in New Orleans, rejected arguments on behalf of Abigail Fisher—a white student who challenged her admission denial as a violation of the 14th Amendment’s equal-protection clause—that the holistic review plan acts as a form of racial quota.
“Close scrutiny of the data in this record confirms that holistic review—what little remains after over 80 percent of the class is admitted on class rank alone—does not, as claimed, function as an open gate to boost minority headcount for a racial quota,” U.S. Circuit Judge Patrick E. Higginbotham wrote for the panel majority.
Higginbotham lamented the workings of the state’s Top Ten Percent Plan, which automatically grants admission to high school students at the top of their class in terms of grade-point average. The “de facto segregation of schools” in Texas enables the Top Ten Percent plan “to increase minorities in the mix, while ignoring contributions to diversity beyond race,” the judge said.
“We are satisfied that UT Austin has demonstrated that race-conscious holistic review is necessary to make the Top Ten Percent Plan workable by patching the holes that a mechanical admissions program leaves in its ability to achieve the rich diversity that contributes to its academic mission,” Higginbotham said.
In November, the full 5th Circuit court voted 10-5 against rehearing the Texas case.
After the Supreme Court granted review on Monday Gregory L. Fenves, who took over as the new president of UT Austin on June 3, issued a statement that said: “Under the Supreme Court’s existing precedent, the university’s commitment to using race as one factor in an individualized, holistic admissions policy allows us to assemble a student body that brings with it the educational benefits of diversity for all students. Our admissions policy is narrowly-tailored, constitutional and has been upheld by the courts multiple times. We look forward to making our arguments before the Supreme Court later this year.”
Edward Blum, the president of the Project on Fair Representation, the group that is behind Fisher’s suit and is challenging affirmative action in admissions nationwide, issued a statement that said, “The outcome of this case may bring our nation closer to the day when a student’s race and ethnicity is not a factor that a school may consider during the admissions process.”
Fisher said in the statement, “I am very grateful that the Supreme Court will once again hear my case. I hope the justices will rule that UT is not allowed to treat undergraduate applicants differently because of their race or ethnicity.”
The case will be set for argument sometime next fall, during the court’s new term. Justice Elena Kagan has once again recused herself, presumably because she worked on the case when she was U.S. solicitor general early in first term of President Barack Obama.
A version of this news article first appeared in The School Law Blog.