On Tuesday, the U.S. Court of Appeals for the Fifth Circuit ruled against Abigail Fisher in her ongoing battle against the University of Texas at Austin for discriminating against her based on race. The court upheld the university’s admissions policy which uses racial and ethnic preferences to achieve “diversity” on campus.
Texas adopted a plan in the mid-1990s that automatically admitted Texas students in the top 10 percent of their high school class to all state-funded universities. Following a 2003 Supreme Court decision that authorized schools to consider race or ethnicity as a “plus factor,” the University of Texas began subjecting applicants for the remaining spots to a “holistic review” that included preferences for underrepresented minorities. Abigail Fisher, a white applicant, did not graduate in the top 10 percent, so her application for admission was in competition with candidates who received racial preferences. Fisher challenged the university’s consideration of race in court after her application was denied.
This case, Fisher v. University of Texas at Austin, went to the Supreme Court in the 2012-2013 term. Last June, in a 7-1 decision, the Supreme Court held that the lower courts were too deferential to the university’s judgment upon reviewing the university’s admissions plan. The Supreme Court previously stated that racial preferences are constitutional if they pass strict scrutiny review, which requires that the university prove that its classification based on race is “narrowly tailored to further compelling governmental interests.” “On this point,” the Supreme Court determined that university officials are entitled to “no deference.” The Court explained that it is “for the courts, not for university administrators” to ensure that the means used by the university pass strict scrutiny review, which must not be “strict in theory but feeble in fact,” and it sent Fisher’s case back to the federal appellate court for a more searching examination.
Unfortunately, in a 2-1 decision, the Fifth Circuit essentially rubberstamped the university’s judgment once again. The burden was on the university to demonstrate that its use of racial and ethnic preferences advanced its compelling interest in obtaining a “critical mass” of campus diversity, but, as a dissenting judge pointed out, the university didn’t come close to defining what a “critical mass” is. Of course, this is not to say the university should be able to use racial quotas, but it’s difficult for a court to determine if the university’s use of race was necessary to achieve a “critical mass” when the university did not “describe[ ] what ‘critical mass’ requires.”
Further, as Justice Anthony Kennedy noted in Parents Involved in Community Schools v. Seattle School Dist. 1, classifications based on race are constitutionally permissible only as a “last resort.” Thus, the university was required to show that there are “no workable race-neutral alternatives” in order to justify its use of race classifications. The majority found that there were, in fact, “no workable race-neutral alternatives” since the state of Texas had tried various alternatives to increase diversity in the past and the top 10 percent program produced too many students from majority-minority schools (who apparently don’t provide the “right” kind of diversity).
This stereotyping by race contradicts the equal protection guarantee in the Fourteenth Amendment of the Constitution. The government should not be in the business of sorting people by such innate characteristics as race and ethnicity. The University of Texas is, after all, a state-run school and its use of racial preferences remains discriminatory. Even though they may be “cloaked in good intentions, the University’s racial tinkering harms the very people it claims to be helping,” Justice Clarence Thomas wrote in his concurring opinion in Fisher v. University of Texas at Austin. Indeed, racial preferences are nothing more than government-sanctioned discrimination, and as Chief Justice John Roberts said, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
In a statement following the decision, Fisher said, “It is disappointing that the judges hearing my case are not following the Supreme Court’s ruling last summer. I remain committed to continuing this lawsuit even if it means we appeal to the Supreme Court once again.” It looks like the justices may have a yet another opportunity to consider the continued validity of racial preferences in college admissions.