A Primer on the Abigail Fisher Case
The Supreme Court case of Fisher v. University of Texas proceeds to oral arguments on December 9. For the convenience of those who would like a quick summary of the case, we provide the following.
Fisher, Round One
This is the second time this racial preference case has come before the high court. Abigail Fisher, who is white, was denied admission to the University of Texas at Austin in 2008. She sued on the grounds of racial discrimination claiming that the university had illegally employed racial preferences that resulted in admissions for less-qualified minority students. After losing a decision in U.S. District Court and an appeal to the Fifth Circuit, Fisher appealed to the U.S. Supreme Court in 2011, which handed down its first decision in June 2013. In that instance, the Court ruled in a 7-1 decision that the Fifth Circuit had failed to apply properly the standard of “strict scrutiny” that is supposed to govern judicial review of the use of “racial classifications.” The Court remanded the case back to the Fifth Circuit so that it could remedy this error.
“Strict scrutiny” is a two-part test. One part is for the court to determine that there is a compelling public interest for the use of racial classifications. The other part is for the court to determine that the use of racial preferences is “narrowly tailored.” In practice, for a policy to be narrowly tailored means that it goes no further than is strictly necessary and that it is resorted to only after less intrusive alternatives have been evaluated and found inadequate. “Narrow tailoring” involves an element of reasonable effort on the part of an institution to minimize the use of racial preferences, which in turn means the institution must act—as Justice Kennedy put it—“in good faith.”
When the Supreme Court issued its 2013 decision, it focused entirely on the second part of the strict scrutiny standard. Fisher hadn’t challenged the “compelling public purpose” part of the University of Texas at Austin’s racial preference regime. She had only challenged whether the policy was narrowly tailored. The Court said, in effect, that the Fifth Circuit had taken the University’s word for it. When the University asserted that yes, indeed, our policy is narrowly tailored, the Fifth Circuit nodded, asked for no supporting evidence, and accepted the claim without serious examination.
In effect, the Fifth Circuit had nullified the second half of the strict scrutiny test, and the Supreme Court called them on it. Go back to work. Make the University of Texas present evidence that the policy truly is narrowly tailored.
The Fisher case has one special feature that adds to its significance. In 1997, Texas passed Bill 588, a “top ten percent rule” that guaranteed students who graduated in the top ten percent of their high school classes automatic admission to all of the Texas public colleges and universities. The law was a response to the 1996 Hopwood decision by the Fifth Circuit which had struck down the use of racial preferences in college admissions. The top ten percent rule was meant to increase minority enrollments in state colleges and universities without using racial preferences per se by leveraging the large number of Texas schools in which most of the students are members of minority groups. (Some 40 percent of black students in Texas attend a school with 90 to 100 percent minority enrollment.) The top ten percent rule indeed succeeded in raising minority enrollments to the approximate level they had been at pre-Hopwood. By 2004, minority enrollments made up 21.5 percent of UT students.
But after the Supreme Court’s 2003 decision in Grutter v. Bollinger opened a new path for using racial preferences in actual admissions decisions, Texas universities decided that they would supplement the top ten percent rule by adding a layer of race preferences over and above the automatic admissions.
Abigail Fisher, who finished high school with a record that left her just short of the top ten percent of her class, sued the University of Texas because of its use of these “extra” preferences. This put the University in the seemingly awkward position of having to argue that it still needed racial preferences despite already having proportional representation of minority students in its general enrollment.
The Fisher case thus put a spotlight on racial preferences for their own sake: preferences pursued not to create “diversity” in the sense of broad representation of minority groups, but preferences pursued because college administrations were set on a policy of aggressively expanding those enrollments even at the cost of lowering academic standards.
Fisher, Round Two
The Fifth Circuit, as per the Supreme Court’s order, re-heard the case, and in July 2014 issued a new decision. Again it sided with the University of Texas. Abigail Fisher once again appealed, first to the Fifth Circuit en banc for a rehearing, and once that was denied, to the U.S. Supreme Court. That is the case that comes up on December 9 for oral argument.
It has, of course, occasioned a great deal of public comment, much of it in the form of derision by conservatives towards both the University of Texas and the Fifth Circuit, which many believe again accepted facile and superficial representations by the University in lieu of real evidence. Two of the key terms in the controversy are “holistic assessment” and “critical mass.” Holistic assessment refers to the supposed practice of taking the race of an applicant into account as one of many factors rather than a determinative factor. Critical mass is the theory that the supposed benefits of “diversity” do not accrue unless a certain threshold percentage of the students in a class are recognized minorities. The University and the Fifth Circuit have taken the position that the University’s racial preferences are employed as part of holistic assessment, and that the need to reach a “critical mass” of minority students necessitates the vigorous forms of racial preferencing in admissions that the University actually uses.
The critical mass argument has been extended by the University which now says it needs to achieve a “critical mass” not just within the University as a whole—a goal long since achieved—but within the enrollments of each department and every course.