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Certiorari granted by the United States Supreme Court on February 21, 2012
Oral arguments scheduled for October 10, 2012
|Petitioner: Abigail Fisher||
University of Texas, at Austin
This case brings the public debate about affirmative action in education to the forefront once again. The Supreme Court dealt with the issue in 1978 and, for the first time, held that a school’s affirmative action program was unconstitutional. In a split decision, the court held that having a specified quota for minority students was illegal, however, the university could take race into account in other ways. Universities have used this holding to shape their admissions programs — steering away from strict quotas and embracing a system where the applicant’s race plays a role in their ultimate decision. Such a system at the University of Texas gave rise to this case.
Abigail Fisher, a white high school student from Sugar Land, Texas, applied to the University of Texas at Austin during her senior year and her application was rejected. Based on a statewide admissions program, the top 10 percent of students at each high school are automatically admitted to state universities. Students who are not within the top 10 percent may also apply to state schools, but for these students, including Fisher, admissions counselors consider various factors, such as the applicant’s race. Such an admissions process was approved by a 2003 Supreme Court case, Grutter v. Bollinger, that permitted universities to take into account an applicant’s racial background in admissions, as long as it was only one factor among many.
Fisher contends that, because preference was given to racially diverse candidates, she was denied admission to the school on the basis of her race. She sued the school under the Equal Protection Clause, claiming that the Constitution forbids such discriminatory treatment.
The subsequent appeal was heard by the Fifth Circuit Court of Appeals. The Fifth Circuit agreed with the lower court and upheld the University of Texas admissions policy as well. Judge Patrick Higginbotham, writing for the Court, compared the program at Texas with a similar admissions program that the Supreme Court had found constitutional in the case Grutter v. Bollinger. The Court held that the Texas program, although it factored in the applicant’s race, did not violate the Equal Protection Clause because it was “narrowly tailored” to meet the school’s “compelling interest” to promote diversity on campus.
Fisher appealed this judgment to the Supreme Court. On February 21, 2012, the Court decided to hear the case and granted certiorari. Oral arguments are scheduled for October 10, 2012.
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
In Bakke, the Supreme Court addressed affirmative action in university admissions for the first time. The 5-4 majority held that U.C. Davis Medical School violated the Equal Protection Clause of the Constitution by creating an application process where 16 out of 100 spots for incoming students were reserved for minority candidates. The Court specified that, while such a “quota system” is unconstitutional, the school may use the applicant’s race as a consideration on other ways because the school has a compelling interest in encouraging diversity in its student body. The opinion was very fractured, and there was no clear majority position.
In a 5-4 vote, the Supreme Court upheld a University of Michigan Law School admissions program that put “substantial weight” on a applicant’s race in order to ensure diversity on campus. The Court evaluated the constitutionality of such a program under the Equal Protection Clause, using their ruling against the quota system in Bakke as a constitutional yardstick. Writing for the majority, Justice Sandra Day O’Connor wrote that the Constitution “does not prohibit the law school’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.” Because the Michigan admissions program had the goal of attaining a “critical mass” of racially diverse students on campus, it was distinguishable from the illegal hard-line quota in Bakke. Notably, Justice O’Connor also mentioned that, while diversity on campus is an important aim, this kind of affirmative action program should have a time limit; she predicted that “25 years [after this case], the use of racial preferences will no longer be necessary to further the interest approved today.”
In this case, the Court considered affirmative action in the high school setting. In Seattle, students within a district can apply to the high school of their choice. The most popular school choices become oversubscribed, so school administrators must decide which students will receive their top choice. One of the most important factors in their decision was the student’s race, and often, the assignments would be done in such a way that would ensure racial diversity at each school. Chief Justice Roberts, writing for the five justice majority, invalidated the program. He held that it violated the Equal Protection Clause, and distinguished it from Grutter v. Bollinger because the program’s only goal was to ensure racial diversity instead of more holistic “diversity in higher education.”
Twenty firefighters sued the New Haven Fire Department, alleging that they were passed over for promotions solely on the basis of their race. The firefighters involved in the case, 19 white and 1 hispanic, outperformed minority candidates on a test to determine which employees would be promoted. As a result, the test results were discarded and no promotions were awarded. The Supreme Court held that this action by the fire department violated Title VII of the Civil Rights Act of 1964. The five justice majority opinion was authored by Justice Kennedy, who wrote that Title VII and the Court’s decision ensures “that the workplace be an environment free of discrimination, where race is not a barrier to opportunity.”
This chart could help with predicting the outcome of the case and how the Justices will vote. But be
careful: a lot will depend on the facts of this case and not how someone has voted in the past. [Note: the Justices are listed in order of seniority with the Chief Justice first.]
Note: Justice Kagan has recused herself from deciding Fisher v. Texas.
|Grutter v. Bollinger (2003)||Parents Involved v. Seattle (2007)||Ricci v. DeStefano (2009)|
|Roberts||Not yet on Court||NC||NC|
|Alito||Not yet on Court||NC||NC|
|Sotomayor||Not yet on Court||Not yet on Court||Not yet on Court|
|Kagan||Not yet on Court||Not yet on Court||Not yet on Court|
|C||The Justice voted that the affirmative action program at issue was constitutional.|
|NC||The Justice voted that the affirmative action program at issue was unconstutional.|
|Not yet on Court||The Justice was not yet on the Court when the case was decided.|
The Respondent, The University of Texas at Austin, argues that the admissions program they’ve put in place conforms to the standards set in cases like Bakke and Grutter. The University describes their use of race in the admissions process as “highly individualized and modest,” and points out that they have set no target for minority admissions, which distinguished their program from the one struck down in Bakke. Although the school admits that racial diversity is a “major priority,” they also stress that many other factors play into the decision of whether a student will be admitted, such as: leadership experiences, socioeconomic background, and special artistic or other talents. Based on this process, the University maintains that its review of Fisher, and other students like her, was “holistic” and consistent with the standard set in Grutter.
Also, the respondent rebuts Fisher’s claim that the Top 10% Program — allowing automatic acceptance to state schools of students in the top ten percent of their high school class — was unconstitutional. The University points out that the Court in Grutter confronted a similar program and found that “percentage plans are a complete, workable alternative to race-conscious holistic review.”
In sum, the respondent supports the reasoning of the Fifth Circuit Court of Appeals, and asks the Supreme Court to uphold its affirmative action admission program as it did in the case of Grutter.
In order to have “standing” to sue in U.S. courts, the Constitution requires an individual like Abigail Fisher to show: (1) that she was injured by the person she’s suing, (2) that the defendant caused the injury, and that (3) if the court ruled for the plaintiff, her injury would be resolved (or in the lingo, “redressed”). All three factors — injury, causation, and redressability — must be found before a lawsuit can go forward. In reference to the first factor, courts have taken a broad view of what constitutes an injury, as long as the alleged harm is “concrete and particularized.”
After her rejection from the University of Texas, Abigail Fisher enrolled at Louisiana State University. She has confirmed that she does not attempt to apply to University of Texas at Austin again at any point in the future. Because she was able to pursue an undergraduate degree elsewhere, the University has argued that she did not suffer an injury in because of the University of Texas rejection.
Should it be sufficient that she was denied admission from the university to show injury? Would Fisher have a stronger case if she had not attended a university after her rejection from University of Texas at Austin?
In his opinion for Parents Involved in Community Schools v. Seattle, Chief Justice Roberts wrote: “Racial balancing is not transformed from ‘patently unconstitutional’ to a compelling state interest simply by relabeling it ‘racial diversity.’”
Should the appropriateness of racial considerations depend on the context of the situation? For example: should racial profiling at an airport be treated differently than considering a candidate’s race in making a hiring decision? If there is a social justice argument for treating these situations differently, how should a judge consider these subjective concepts of fairness and justice? Consider these questions in a blog post of 200 – 300 words.