Supreme Court Watch: Fisher v. University of Texas
One of the most important cases of this year’s docket is up for argument before the Supreme Court today. At issue is whether the Equal Protection clause of the Fourteenth Amendment permits consideration of an applicant’s race a one of many elements in accepting or rejecting college admission applications. This case could decide the fate of affirmative action laws, not only in college admissions, but in the fields of hiring and federal contracting as well.
Section 1 of the Fourteenth Amendment is below, with the Due Process and Equal Protection clauses highlighted:
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.
The Equal Protection clause thus requires each state to provide equal protection under the law to everyone within that state. The Supreme Court used this requirement in Brown v. Board of Education (1954) to order the desegregation of American schools. Fisher v. University of Texas will determine if this requirement still stands.
In 1966, the Texas legislature adopted the race-neutral “Top Ten Percent” law as the undergraduate admissions policy for the University of Texas. This law guarantees that all Texas high school students who graduate in the top ten percent of their class will be accepted into the state University. This did have a positive affect on minority admissions, but after the 2003 Supreme Court decision in Grutter v. Bollinger (see below), the University of Texas added to the legally-defined standard to allow race as one of many considerations for students not falling in the top ten percent.
These additional criteria for the remainder of UT students is called a “holistic whole-file review” of applications. The schools may consider essays, leadership qualities, extracurricular activities, awards, work experience, community service, family responsibilities, socio-economic status, and languages spoken in the home. As of 2005, the University may also consider race.
In 2008, two white students (Abigail Noël Fisher and Rachel Multer Michalewicz) sued the University of Texas when denied admission under these rules, arguing that the race-conscious admissions policy violated their rights to equal protection under the Fourteenth Amendment. We should not miss the irony that white students claimed their rights were being violated using precisely the arguments that had created the admissions policy designed to protect the rights of minority students.
The Court last considered the issue of race in college admissions in the 2003 case Grutter v. Bollinger. Justice Sandra Day O’Connor, a Reagan appointee, wrote that 5–4 decision upholding the affirmative action policy of the University of Michigan Law School. The ruling held that a university may consider race as one of many elements in its admissions process, in order to help ensure diversity or to avoid any possibility of discrimination against minorities. Justice O’Connor wrote that it may not be necessary to consider race at some point in the future, but that it still made sense to do so in 2003.
In 2009, United States District Court judge Sam Sparks upheld the University’s policy, writing that it satisfied the standards and requirements of Grutter v Bollinger. In 2011, the Fifth Circuit Court of Appeals panel voted 9–7 to uphold the District Court decision. Fisher appealed again to the Supreme Court, which granted certiorari in February of 2012. Oral arguments are today.
Since the Grutter v Bollinger decision, Justice O’Connor has been replaced by the more conservative Chief Justice John Roberts, an George W. Bush appointee, thus making it more likely to go the other way this time around. The swing vote on the Court these days is usually with Justice Anthony Kennedy, another Reagan appointee, who voted against the majority decision in Grutter v Bollinger. A further complication in Fisher is that Justice Elena Kagen has recused herself from this case. She was Solicitor General when the United States filed an amicus brief while the case was being argued on appeal before the Fifth Circuit.
This may thus come down to a 5–3 decision, with the Court’s conservative majority ruling, and it could have an enormous impact on racially conscious policies, not only in college admissions, but in other areas such as employment rights, hiring and promotion decisions, rules awarding federal or state purchasing and construction contracts, perhaps in other areas as well.
Justice Kennedy could surprise observers; last term, Chief Justice Roberts showed a particularly strong independence in his decision on the fate of Affordable Care Act. In case of a 4–4 tie, the Circuit Court’s decision will stand, and the University of Texas will retain its current admissions policy. Stephen Menendian has an excellent article discussing likely clues to look for in oral arguments in an attempt to divine how the Justices are leaning.
What are your thoughts? Is it permissible — even, perhaps, required — to consider race as one of many factors in college admissions? Was affirmative action ever required as a means of correcting racial discrimination? If so, is it still required today? What about areas of discrimination in sexual orientation, gender, or religious faith? Does the Equal Protection clause of the Fourteenth Amendment, enacted after the American Civil War, still have meaning in 21st century America?
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About dcpetterson (186 posts)
D. C. Petterson is a novelist and a software consultant in Minnesota who has been writing science fiction since the age of six. He is the author of A Melancholy Humour, Rune Song and Still Life. He lives with his wife, two dogs, two cats, and a lizard, and insists that grandchildren are the reward for having survived teenagers. When not writing stories or software, he plays guitar and piano, engages in political debate, and reads a lot of history and physics texts—for fun. Follow on Twitter @dcpetterson