Opinion of the Court

Supreme Court of The United States

No. 11-345

Abigail Fisher, Petitioner v. University of Texas Austin

On Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit

Kyle, Thomas, Andrew, Scott, Clay, Avery, Raz, Caroline

Fisher claimed that using race as a factor in the admissions process at the University of Texas (Austin) was a violation of her rights established under the Fourteenth Amendment’s Equal Protection Clause. Her claims are justified through stating that without considering race, Fisher would have been admitted.

Point I: The admissions process was not narrowly tailored

In the 1938 court case United States v Carolene Products Co., the Supreme Court established that when testing the constitutionality of certain actions, the process must fall under judicial review. The first tier upon which the judicial review is based is the premise of being narrowly tailored. In order to be considered “narrowly tailored” the process must achieve the goal or interest without being too all-encompassing or being overly restrictive. Judicial review implemented this strict scrutiny standard in the New Deal legislation and notably in Korematsu v United States. (1944)

The University of Texas’s admissions process does not pass strict scrutiny, because it is not narrowly tailored. In order for the process to be narrowly tailored, it must be used for a specific purpose, and for that purpose only. It has the goal of furthering racial diversity. Yet Princeton’s analysis of the racial diversity of the University of Texas has shown that the University of Texas’ admissions process has not furthered racial racial diversity. The University of Texas has a lower diversity rate than Texas itself and lower than the averages of other universities and/or the national standard. It also has not increased the average diversity rate within its own educational system throughout the years. In addition, the University of Texas has not specified what their goal for diversity is, which demonstrates that the University of Texas doesn’t have a specific purpose.

Under review from other processes implemented we can conclude that there are more effective alternatives to the currently implemented system. The “Top 10% Law” implemented in Texas, formally styled as “Texas House Bill 588”, provides for academic diversity. As a review by Princeton pointed out, the near thirty thousand applicants have flooded University of Texas’s 6,500 freshman student capacity. If the current trends continue, by the end of 2013 the University of Texas could only afford to accept students who have qualified under the Top Ten Percent Law according to the Western Interstate Commission of Higher Education. In an educationally competitive environment, the educational system cannot admit further students simply based off of artificially attempting to create racial diversity when the university can barely afford to take on the students allocated towards it. This system that is currently implemented already provides for racial diversity. In fact, the implementation of Texas HB 588, was shown to maintain the Texas average of students who came from “rural” communities as compared to population levels defined as “Non-Metro: Fast Growing,” “Independent town,” and “Non-Metro: Stable.” This shows a viable process for creating and maintaining racial and ethnic diversity naturally. (Source: Texas Education Agency)

Texas House Bill 588, passed in 1997, was created in response to the Hopwood decision, which explicitly stated that Texas public universities were barred from using a student’s racial or ethnic background in consideration for admissions decisions.

Point II: The admissions process does not have a compelling interest

The strict scrutiny principal was originally applied during United States v Carolene Products (1938) under which if the court wanted to establish a compelling governmental interest it must first pass the standards set thereof. While past rulings have established that diversity may be considered preferred, any subject applied to a strict scrutiny process must pass criteria defining it as critical. While the decision in Regents of the University of California v Bakke may have initially established some state interest in governmental diversity, it was never firmly shown that diversity was actually compelling. Justice Powell demonstrated this through his own analysis, where he concluded that, “Race and ethnic distinctions of any sort, are inherently suspect and call for the most exacting judicial examination.” So after review in the case Hopwood v Texas, the courts established that under strict scrutiny, in accordance with every strict scrutiny hearing ever presented before the Supreme Court, UT’s admissions policy did not present a compelling governmental interest.

However the statement is so inherently flawed when applied on a strict scrutiny basis that it must be dichotomously split apart and reexamined.The initial claim must be examined on a basis of implementation. Simply put, to achieve the standard of a compelling governmental interest it must be narrowly tailored to the goals at hand. However, seeing as how no standard has ever been established, one must assume that it lies open to interpretation. To provide an example, as of now the University of Texas has stated that it is attempting to mirror the acceptance rate established in Grutter v Bollinger. However, a perfect replication of the state’s minority rates (the most idyllic situation possible) is by its very nature discriminatory and a loose quota.

UT states that the compelling interest of using race in admissions creates a more diverse community within higher education promotes and fosters interconnectivity between racial groups and helps as a catalyst for relieving ethnic tensions. We would like to establish once again that this has never been fully proven or adequately supported. Thus, UT’s assertion that using race in admission creates compelling governmental interest of diversity is invalid.

Summary:

In conclusion, the Supreme Court can establish that the University of Texas’ admissions policy should be barred from use in the Texas public education system because it violates the Equal Protection Clause of the Fourteenth Amendment. Through review of the tiers of analysis established in previous cases, the system implemented by the University of Texas has inherently detracted from the educational achievement of the university overall. Furthermore, the admissions system harmed Fisher and any other non-minority students who applied. The process has not met the standards presented under judicial review when strict scrutiny is implemented, and the educational system must therefore fall upon using Texas House Bill 588 solely in the admissions process, and desist from artificially attempting to create racial diversity, which was never established to contribute to the achievement higher education.

Noah   Jordan

Concurring Opinion

Arguments

Race should not be used as a factor because of two main reasons. First, racial diversity is not compelling interest, and second, racial consideration often not narrowly tailored or falls under the category of a quota system.

In order for racial diversity to be permissible, it must be a ‘compelling interest’, which means that it must provide a significant benefit to the school. However, in a study done by the Civil Rights Foundation, schools that consider race have extremely inconsistent numbers of racial minorities accepted each year with 0-6% swings in racial categories: Black, Hispanic, Asian, etc. UT Falls under this category having a 0% change across the board for black minority students from the years of 2010-2012 as published by their racial breakdown. Furthermore, one year UT had a swing in hispanic acceptance from 21% to 24%, and then back to 21% in the next year. This shows inconsistency in their program, and because the program can’t show consistent benefits, racial diversity isn’t a compelling interest.  Additionally, there are very few educational benefits that directly come from racial diversity. In a study published by the Economist, they showed that the benefits that come from a diverse study body are not correlated with race, which means that race is not inherently a compelling interest. They found that the biggest benefits that can come from a diverse student body are related to “past experiences, place of origin, different opinions, and lifestyle choices.” All of these Compelling interests could easily be obtained without taking race into account because none of these educational benefits directly come from racial diversity.

Based on the ruling in Grutter v Bollinger and Regents of the University of California v Bakke, the use of race, not just in UT’s system, is impermissible. Admissions must be narrowly tailored, but it must also not exist as a quota. Unfortunately for UT, a system like this is only a theoretical possibility. The actual implementation of a this kind of system is, by the definition of strict scrutiny and quota, impossible. In order to not meet a quota, a school must maintain a state of intentional ignorance. This is because if the school sets a specific goal for the number of students they want from different races, then they are operating under a quota system, so they must maintain only general figures to describe their goals for students. This initially presents a problem that is described in the Amicus Curiae Brief of the Center for Individual Rights where it states , “most lower courts found the distinction between a ‘goal’ and a ‘quota’ difficult to discern”. This highlights the fundamental flaw in restricting schools from using quota systems; schools will always, to some extent, use a quota system. This problem is amplified by the rules of strict scrutiny. Strict scrutiny is the most stringent standard of review, and requires specific information from the school in order for a permissible system of consideration to be implemented. A school can’t meet strict scrutiny without a specific numbers of students provided for review, but if a school can provide specific figures of it’s students from different races, then it falls under the definition of a quota, and is likewise impermissible.

Decision

We would reverse the decision of the Fifth Circuit Court of Appeals, ruling that race is not a compelling interest, and that a school cannot effectively maintain a narrowly tailored program without it being a quota. Thus, would overturn the decision in Grutter V Bollinger, saying that race should no longer be used as a factor in college admission systems.

Concurring in Part, Dissenting in Part

Question to be decided:

Does the Equal Protection Clause of the Fourteenth Amendment permit the consideration of race in undergraduate admissions decisions?

I. Strict scrutiny was not applied (Mark)

    Strict Scrutiny, the most stringent standard of judicial review used by United States courts reviewing federal law, has not been used to examine this case. The District and Appellate courts have failed to apply strict scrutiny, as a result have missed crucial details. Details that could alter the judgement of many justices, for instance using the special admissions program was not the best solution to acheive goals set by the state

       The case the Supreme Court will decide on, Fisher v Texas will use strict scrutiny in examining facts by both the plaintiff and the defendant. he Majority Opinion used strict scrutiny and justified Bakke’s equal protection rights being violated in “The California Supreme Court, applying a strict scrutiny standard, concluded that the special admissions program was not the least intrusive means of achieving the goals of the admittedly compelling state interests of integrating the medical profession and increasing the number of doctors willing to serve minority patients. Without passing on the state constitutional or federal statutory grounds, the court held that petitioner’s special admissions program violated the Equal Protection Clause.

in the case, Adarand v Pena, Pena, a minority subcontract worker specializing in highway road work, was the lowest paid subcontracted worker that Adarand Construction subscribed. The Supreme Court decided to use strict scrutiny to analyze and decide on this case, and when Pena was victorious, it set a clearer choice for our current Supreme Court to use strict scrutiny.  The Supreme Court justices in Adarand v Pena decided to examine their conflicts using strict scrutiny, and set the precedent for further cases, most importantly the one at hand, Fisher V Texas.

II. Diversity is compelling interest (Sean)

A.  This court has a long-standing history of recognizing that diversity is a compelling interest

In Regents of the University of California v. Allan Bakke (1978), the majority opinion written by Justice Powell found that “the State has a substantial interest that legitimately may be served by a properly devised admissions program involving the competitive consideration of race and ethnic origin.” These sentiments were reflected in the case of Grutter v. Bollinger (2003), where the Court, in the majority opinion written by Justice O’Connor, found that Unites States 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.” In both of these cases, the Court recognized the substantial and compelling interest of diversity. Unless something has happened to make diversity less beneficial than it was in 1978 and 2003, there is no reason to reverse precedents that have dictated the court’s stance on diversity for the past 25 years.

B.Diversity furthers the compelling goals of colleges and universities

1.  Education in a diverse environment helps prepare students for careers in a diverse world

As the American Education Association pointed out in their amicus, “higher education institutions must equip their students to work and live in an interconnected world.” Across the world, businesses are becoming more interconnected through means of the internet and technology. The Dean of John Hopkins School of Business summarized it well when he said “diversity is . . . crucial to doing business in a world whose populations . . . become more interconnected by the day.” Technology enables organizations to engage in activities that would have otherwise been strenuous due to the high costs and delays in operating a fully synchronized operation. Additionally, America is becoming a more diverse nation. In their amicus brief, Small Business Owners and Associations point out that “During the brief period since this Court decided Grutter, the nation’s minority population grew from 31.9 percent to 37.3 percent.” In Grutter, the court ruled that “the skills needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints.” We affirm and uphold the necessity of preparing students for diverse interactions in the future.

2. Education in a diverse environment leads to a better education

Diversity, at its simplest, is variety among a group, in this case students. This diversity affects how students see themselves and society, and how they interact with the world around them. Having a variety of viewpoints is important in an educational setting, because it enables students to learn and problem solve differently.

According to the American Education Research Association, “student body diversity fosters improvements in students’ cognitive skills—such as critical thinking and problem-solving—because students’ exposure to individuals different from themselves, … challenges their thinking and leads to cognitive growth.“ Establishments dedicated to higher education clearly have a definite interest in improving critical thinking and cognitive ability in their students. Accordingly, diversity is a compelling interest.

III. The U.T. Program is not narrowly tailored(Teala)

UT’s admissions process is not narrowly tailored. The implementation of the system is flawed.

UT’s admissions system is primarily based on the top 10% Law. This law automatically accepts the top 10% of students from each high school to a state university.  Students who are not in the top 10% must go through the application process. Their applications are considered with holistic review so as to reach a critical mass of minority students. By taking race into consideration the program is not narrowly tailored because it does not have an end goal, a certain number of minority students.  In Parents Involved in Community Schools v. Seattle School Dist. No. 1 the majority ruling decided that it was unconstitutional to decide on a student’s acceptance to a school because of their race. The ruling was based on the grounds that the program’s only goal was to ensure racial diversity. UT works to get their diversity to mirror that of the state of Texas’ demographics. This means accepting certain students due to their race. The stance that the U.S. Supreme Court has taken is one that hopes race will not need to be used in acceptance to ensure diversity. It has been stated by Justice O’Connor, who wrote the majority opinion in Grutter v. Bollinger, “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today”. By putting emphasis on race it makes UT’s admissions process unconstitutional.

IV. Grutter must be re-interpreted to avoid a double burden on universities (Tommy)

There is a necessity to reform the ruling in the case of Grutter v. Bollinger. The court’s approval of an application process in which “substantial weight” was placed on race needs to be reformed.This case keyed on the use of narrow tailoring, or the legal principle that makes a law as specific to the issue as possible. Although approved in Grutter, the case of Fisher v. University of Texas, Austin, cannot embed narrow tailoring without the use a quota system. A quota system, ruled unconstitutional by the Supreme Court’s  interpretation of the 14th amendment in the case of Regents of the University of California v. Bakke, is the use of a specific number for a goal. The University of Texas, Austin has no number of minorities desired to make an ideal student body, and this therefore is not specific enough to undergo strict scrutiny.

The issue in the Grutter ruling that will stand is compelling interest in terms of race. As seen in the prior case, the justices affirmed in Justice Sandra Day O’Connor’s words: “(the) 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” is not infringed upon by the constitution.

In conclusion:

Strict scrutiny must be applied to U.T.’s admissions policy. Since the program is not narrowly tailored, it does not meet this standard. However, Grutter as a precedent was overly restrictive and must be reconsidered. As such, we reverse the decision of the lower court.

Ray, Steven, Rachel, Kristen., dissenting

Fisher v. University of Texas at Austin

Dissenting Opinion

Held: UT’s use of race in admissions decisions is lawful under the Equal Protection Clause.

I

Holistic review is the fairest way to judge an applicant and race is a necessary part of holistic review. Holistic review takes into account all the variables of the applying student. According to UT’s website, it takes into consideration several different factors including: “leadership potential, extracurricular activities, honors and awards, work experience, community service, race, and other special circumstances – that the University considers along with a student’s academic record and personal essays to assign a score that determines admissions”. There is much more to students than how well they test or their grades in high-school. Including race as one of the factors does not necessarily favor one group or another, it just ensures the most deserving and fit applicants are accepted.

If race was not used as a part of holistic review, a wealthy white kid and an underprivileged minority with similar grades would be viewed by Universities as the same person. The Universities would not recognize the world experience that either kid has experienced, despite the fact that has an fundamental impact on the applicant. However, the underprivileged minority would have had more obstacles and more to overcome. Under The 10% Law this would not be taken into account.

II

Holistic review is not complete without race as a factor. Racial consideration ensures diversity, which is the compelling government interest due to educational benefits. A study on college law students, Educational Diversity Project study, found that there is a “clear positive relationship” between racial diversity and educational benefit.  The 5th District Court of Appeals, stated that in 2002, before race was implemented at UT, 79% of the University’s 5,631 classes had zero or only one African-American student per class and 30% had zero or one Hispanic student per class. This large-scale absence of African-American and Hispanic students from thousands of classes illustrates that without race as a factor in the admissions process, racial diversity cannot be achieved.

III

Using race as one factor of many is necessary because the Top Ten Percent Law is ineffective in maintaining diversity and in admitting promising students. UT’s representative during the oral arguments for this case, Mr. Garre, said that “After seven years of the Top 10% Law, racial diversity (among these groups) in UT had remained stagnant or worse. In 2002, African American enrollment had dropped to 3 percent.” He also stated, “The Top Ten percent of a racially identifiable high school may get you diversity that looks okay on paper, but it doesn’t get you diversity that increases educational benefits on campus.” (Fisher V UT Oral Arguments, P40.9-24. N.p., 10 Oct. 2012. Web. 25 Mar. 2013)

Mr. Garre’s opinion on the Top 10 Percent Plan, as well as the facts backing his claim, speak volumes about the inadequacy of the Top 10 Percent Plan’s implementation of diversity, as well as why diversity is a compelling interest. Also, diversity requires the use of race in the admissions process to protect itself. In addition to being unproductive  in a field that the plan was created to serve, it does nothing in an academic sense. According to the University of North Carolina’s Amicus Curiae Brief in 2012, many promising students would be declined admission if the 10% plan was used in North Carolina, and it would only increase diversity by 1%. Also, 21% of first year students who made the Dean’s List in spring of 2012 weren’t in the top 10% of their high school classes. ( Brief for the respondents by UCNC, P36, N.p, 9 Aug. 2012. Web 26 Mar. 2013) Finally, in the brief by UT for the Supreme Court, it was stated that percentage plans don’t take into account the achievements of students or different subject areas that allow the university to create a diverse student body. Therefore, the Top 10 Percent Plan is unable to maintain diversity and does not allow for favorable students to be admitted to UT.

IV

In summary, the Equal Protection Clause does not prohibit UT’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that come from a diverse student body. UT’s admissions process uses holistic review which is the fairest way to judge an applicant, and race is a necessary component of holistic review. Consequently, Fisher’s claim that her Fourteenth Amendment rights were violated is false. The Top 10 Percent Law is ineffective in enforcing diversity, which is clearly a compelling interest ( as proven by Grutter V Bollinger, in which race was ruled constitutional as one of many factors), therefore UT’s use of race in holistic review is wholly justified. Eliminating the use of race in the admissions process takes away a valuable tool for the betterment of the student body from universities, and robs their students of a diverse learning environment. The judgement of the 5th District Court of Appeals, accordingly, is affirmed.

It is so ordered.

Fisher v. University of Texas

Dissenting Opinion

Chloe, Katie, and Caitlin dissenting opinion.

Opinion: The University of Texas at Austin’s use of race in undergraduate admissions decisions does not violate the Equal Protection Clause according to previous precedents, such as Grutter v. Bollinger. The University of Texas at Austin’s admissions system of holistic review, where many factors are taken into account, is the best way to judge an applicant. Race is a necessary part of holistic review for many reasons. Racial consideration as part of holistic review ensures diversity, which is a compelling interest because of the educational benefits of diversity. College admissions should not rely solely on test scores and GPA because these numbers could be distorted by the stereotype threat.

ARGUMENT:

I.  Holistic review is the way way to judge an applicant and race is a necessary part of  holistic review, where many factors are taken into account

Holistic review, where many factors are taken into account, is the best way to judge an applicant and race is a necessity for holistic review. According to argument one of the University of Texas’ brief, “UT’s admissions policy is a model of the type of individualized and holistic plan that the Supreme Court has approved since Regents of the University of California v. Bakke (1978)”. As a result of this precedent, admissions systems are permitted to use race if it is one of many factors, is not the main factor, and there is no quota system. The Supreme Court’s decision in Bakke was upheld in the case of Grutter v. Bollinger (1997). In this case the Supreme Court held that the Equal Protection Clause was not violated because the use of race in admissions is narrowly tailored. This means that many other factors besides race are considered in admissions decisions and that race is not the deciding factor.

II. Racial consideration as part of a holistic review ensures diversity which is a compelling interest because of educational benefits.

Racial consideration as a part of a holistic review is a compelling governmental interest because it ensures diversity. The Supreme Court stated that substantial evidence was needed to prove educational benefits; “studies showing that student body diversity promotes learning outcomes, and better prepares students for an increasingly diverse workforce and society, and better prepare them as professionals”(Brief for Social and Organizational Psychologists in Support of Respondent). Additional benefits of diversity ,shown in a social science studies (Brief for Social and Organizational Psychologists in Support of Respondent), are that diversity leads to a more vibrant and productive workforce and civil life; “Nothing less than the nation’s future depends upon leaders trained through wide exposure to the ideas and mores of students as diverse as this Nation of many peoples”(Grutter v. Bollinger). Diversity is needed at college because ,for most students, college is their first time of interracial contact. A study done in 2001 at Harvard and University of Michigan law school surveyed white students according to how much interracial contact they had before college. The result was that 50% of the students responded that college was their first experience.

III. Empirical social science studies have shown that diversity benefits the whole student body and that diversity reduces the stereotype threat.

Empirical social science studies have shown that diversity is a compelling governmental interest because it benefits the whole student body. “Basically, these reviews showed that diversity related benefits are far ranging, spanning from benefits to individual students and the institutions in which they enroll, to private enterprise, the economy, and the broader society.” (Brief for Amherst etc. Amici Curiae in support of Respondent). A study by Patricia Gurin at UCLA analyzed a demographically representative sample of first-year students and found that informal interactional diversity led to an increase in citizenship, racial, and cultural engagement. In another study Shouping Hu and George D. Kuh reviewed over 50,000 students and found that white students were benefited by diversity in technology preparation, diversity competence, and general educational outcomes. On the other hand minority students gained more from diversity in vocational preparation and intellectual development. These studies show that the use of race in admission decisions benefits the whole class.

There are many benefits to increasing diversity, including the reduction of the stereotype threat. Stereotype threat would impact minority students who would feel pressure that their performance could confirm a negative stereotype about their group according to their test scores and grades. This threat still occurs once a minority has been admitted into college. The college must admit more minority students to make them comfortable and not feel like they are representatives of their minority group on campus. This is a compelling interest because diversity helps minorities feel more comfortable and lessens the effects of stereotype threat. In a study on stereotype threat researchers observed interracial interactions in which one person was a minority. The result was that the minority’s stress level went up along with their anxiety and physically their heartbeat and stress hormones increased.

If race were not permitted in admission systems, students would be faced with the stereotype threat. Stereotype threat affects children as low as middle school. Because of stereotype threat, standard assessments of academic performance underestimate the ability of students targeted by negative stereotypes by an average of 0.18 standard deviations, the equivalent of 62 points on the SAT. Attempts to lift the threat have reduced the gap between black and white middle school students’ GPAs by 40%. “Experiencing stereotype threat can result in physiological change in the body and brain, thus undermining academic performance expectations, increasing a person’s self-doubt, and generally reducing an individual’s performance resources when they need it most.”(Brief for Social and Organizational Psychologists in Support of Respondent). As a result of the 10% law there is not enough diversity. This is because on tests that directly impact students blacks do not do as well as whites. The 10% law only takes into account these types of test, so UT’s use of race in their holistic admissions provides for the diversity that the 10% law does not.

Conclusion: In conclusion, we are dissenting with the majority and affirming the lower court’s position that The University of Texas’s holistic admissions process does not violate the petitioner’s equal protections under the 14th Amendment. The University  of Texas’s admission system does not violate the Equal Protection Clause, therefore the University is permitted to consider race as a part of holistic review in their admissions process.

Fisher v. University of Texas, Austin

Dissenting Opinion

Dylan, Cole

In response to the question presented: “does the Equal Protection Clause of the Fourteenth Amendment permit the consideration of race in undergraduate admissions decisions?”, we find that the answer is yes because Racial consideration as a part of holistic review ensures diversity which is a compelling interest.

I. Racial consideration as a part of holistic review ensures diversity, which is a compelling interest.

In Regents of the University of California v. Bakke, Justice Powell states: “diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.”(Regents of the  University of California v. Bakke). In other words, he says that it is best to have race as one of many factors in the admissions process. Holistic review uses a variety of factors which bring more diversity into a school in different ways. In Bakke, Justice Powell affirmed that a plan that uses holistic review is a good way to judge applicants because this type of plan: “treats each applicant as an individual” (Bakke). So not only is UT’s admissions process constitutional, but also uses an effective process in bringing diversity. In the majority opinion in Grutter v. Bollinger, Justice O’connor wrote about the University of Michigan’s law school: “By this flexible approach, the Law School sufficiently takes into  account, in practice as well as in theory, a wide variety of characteristics besides race and ethnicity that contribute to a diverse student body”. (Grutter v. Bolinger, 2003) This shows that holistic review is the best way to bring diversity into a university. UT Austin also uses this same process of holistic review, therefore the admissions process of UT Austin is constitutional under the Fourteenth Amendment.

In order to pass strict scrutiny, it is necessary for UT to show that it’s use of race furthers a compelling government interest, and that race has to be used to achieve this. The interest in question in this case is educational diversity. School diversity has been established to be a compelling interest by Supreme Court precedents from similar cases, and statistics have proved that use of race is necessary to achieve it. The first support for diversity being a compelling interest comes from the Bakke, wherein Justice Powell stated that: “the interest of diversity is compelling in the context of a university’s admissions program”. More support is offered by the majority opinion for Grutter, in which the Supreme Court held that “student body diversity is a compelling state interest that can justify using race in university admissions”. Finally, statistics from the University of California, where race cannot be used during holistic review, solidly support it’s being completely necessary. In 1996, California proposition 209 banned the consideration of race, sex, or ethnicity in public university admissions. Within two years, student diversity dropped dramatically. The smallest drop was at UCLA, where minority enrollment went from 24.3% to 11.2%. Every other UC school experienced an even larger loss of diversity. The UC system took several countermeasures in an effort to restore diversity, including an outreach task force and socioeconomic considerations. All these measures were ineffective at raising minority enrollment. The history of the UC admissions program clearly demonstrates that using race in admissions is the only way to raise school diversity.

Conclusion

The Equal Protection Clause of the Fourteenth Amendment permits the consideration of race in undergraduate admissions decisions because racial consideration as a part of holistic review ensures diversity, which is a compelling interest.

Fisher v. University of Texas

Dissenting Opinion

Margaret and Sam

Bolded Words and References Defined Below

The court must answer whether UT’s use consideration of race in undergraduate admissions decisions violates the Equal Protection Clause of the Fourteenth Amendment, including Grutter v Bollinger (2003).

The decision of the Fifth Circuit 3-judge panel, finding UT’s policy constitutionally sound under Grutter v Bollinger, should be upheld. It is up to the educators to determine if diversity is a compelling interest at their respective university. If it is, then processes that use race as a factor in accordance to the requirements set by Grutter v Bollinger, and Regents of the University of California v Bakke, are constitutional. Measurement of diversity of any kind, and if it is necessary, is relative to many factors at a school. Each university has different values, and different outside factors, which can change what the school looks for when accepting students. While allowing universities to determine use of race themselves may promote fear of discrimination, students are already protected by state and federal laws that prohibit discrimination.

Only the educators who are immersed in the student body and its atmosphere can accurately judge what is beneficial to the school. It is unlikely that anyone involved in any other government capacity would be more knowledgeable on the relative framework of UT’s education system than UT educators. Educators have been successfully training students for a long time; there is no compelling reason to suddenly question their authority. Decisions regarding admittance to university institutions have historically been among the cornerstones of academic freedom. The success of modern students will depend on their ability to involve themselves in all types of diversity including that of ideas, cultures, or race and ethnicity. Academic judgments in UT admissions consider many factors about student applicants, which, when used collectively, are fundamental in forming classes in which students can expand their horizons, enhance their world views by exposure to other perspectives and experiences, and prepare for rewarding and engaging lives.

There are already anti-discrimination laws to prevent UT admissions officers from unfairly showing bias. Title VI of the Civil Rights Act of 1964 (1) prohibits the exclusion from “exclusion from participation in, denial of benefits of, and discrimination under federally assisted programs on ground of race, color, or national origin.”  The Texas Constitution (2) ensures “[e]quality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin.” The US Department of Education (3) has nondiscrimination regulations within the field of education to ensure fairness in schools: “[N]o person in the United States shall; on the ground of race, color, or national origin, be excluded from. . . any program or activity receiving Federal financial assistance from the Department of Education.” Thus, leaving the decision of using race to promote diversity up to the schools will not result in discrimination, as numerous laws prevent this.

References

1. TITLE VI OF THE 1964 CIVIL RIGHTS ACT. 42 U.S.C §§ 2000d – 2000d-7. TITLE 42 – The Public Health and Welfare. SUBCHAPTER V – FEDERALLY ASSISTED PROGRAMS. Sec. 2000d. Prohibition against exclusion from participation in, denial of benefits of, and discrimination under federally assisted programs on ground of race, color, or national origin: “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”

2. The Texas Constitution. Article 1. Bill of Rights. Sec. 3a.  EQUALITY UNDER THE LAW.  “Equality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin. This amendment is self-operative.”

3. US Department of Education. TITLE 34—EDUCATION. SUBTITLE B—REGULATIONS OF THE OFFICES OF THE DEPARTMENT OF EDUCATION. CHAPTER 1—OFFICE FOR CIVIL RIGHTS, DEPARTMENT OF EDUCATION. PART 100—NONDISCRIMINATION UNDER PROGRAMS RECEIVING FEDERAL ASSISTANCE THROUGH THE DEPARTMENT OF EDUCATION EFFECTUATION OF TITLE VI OF THE CIVIL RIGHTS ACT OF 1964

“[N]o person in the United States shall; on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity receiving Federal financial assistance from the Department of Education.”