It is beginning to look as if yet another case dealing with racial preferences in college admissions will make it to the U.S. Supreme Court.
Abigail Fisher, a white woman from Texas who was denied admission into the University of Texas’ 2008 class, asserts the university unlawfully excluded her to achieve race-based admissions goals.
Instead of adopting a “narrowly tailored” approach to race in step with the directives of previous court rulings, Fisher has argued in her legal filings that the university has embraced preferential policies that violate the equal protection clause of the 14th Amendment. But, so far, she has stopped short of asking the high court to overturn its 2003 ruling in Grutter v. Bollinger.
The Supreme Court’s lack of clarity has ‘muddied the waters’ on race-based admissions, says @JenGratz.
In Grutter, the Supreme Court ruled colleges and universities could consider race as part of a “holistic” approach to admissions, but outright quotas and other forms of “racial balancing” were unconstitutional. University officials must make a “good faith” effort to exhaust race-neutral alternatives for an affirmative action program to satisfy Grutter’s “strict scrutiny” standard.
University of Texas officials say their racial classification system, as applied to Fisher, is a vital and legal means to the pursuit of diversity and consistent with court precedents.
Last year, the U.S. Supreme Court ruled 7-1 in Fisher’s favor.
“Strict scrutiny does not permit a court to accept a school’s assertion that its admissions process uses race in a permissible way without a court giving close analysis to the evidence of how the process works in practice,” Justice Anthony Kennedy wrote for the majority.
The Supreme Court vacated the 5th Circuit’s ruling and ordered it to review the case again. A three-judge panel of the 5th Circuit did just that and, for a second time, upheld the University of Texas’ race-conscious admissions policy in a 2-1 decision on July 15.
Fisher has already filed an appeal to the full 5th Circuit, which could well result in the case again reaching the Supreme Court.
Jennifer Gratz, CEO of the XIV (14th Amendment) Foundation, told The Daily Signal the 5th Circuit’s actions call out for a decisive, unequivocal ruling from the Supreme Court.
“This decision demonstrates the fundamental murkiness of the Grutter v. Bollinger allowance for nuanced uses of race in admissions,” she said. “Grutter has only muddied the waters on unsustainable policies.”
Gratz was the plaintiff in the 2003 Gratz v. Bollinger Supreme Court ruling that was issued concurrently with Grutter. In that case, the court overturned the University of Michigan’s overt use of quotas in its undergraduate program, but it allowed for the University of Michigan Law School to continue with an admissions policy that considered race as one of many factors.
Even so, the law school’s “narrowly tailored” approach to race, and similar approaches at other schools, should be phased out over time, Justice Sandra Day O’Connor wrote in her majority opinion. She also gave her blessing to voter-approved bans on racial preferences that began with California’s Proposition 209 and continued with similar measures in Washington, Arizona, Nebraska, Oklahoma and Michigan.
Government shouldn’t be sorting people by such characteristics as race and ethnicity, says @EHSlattery.
Gratz, who spearheaded the Michigan Civil Rights Initiative, prevailed again before the Supreme Court in April. In a 6-2 ruling, the justices reversed an opinion from the 6th Circuit and affirmed the right of voters to mandate equality under the law in college admissions and government hiring.
With the Michigan Civil Rights Initiative reinstated, Gratz anticipates that other ballot measures will begin to take root across the country. But unless the court overturns Grutter, admissions officials who are determined to keep preferential policies in place “will continue to play games,” she laments.
“This ‘holistic approach’ to race-conscious admissions has absorbed the same discriminatory policies but with less transparency,” Gratz said. “Instead of calling them quotas, we now have nebulous terms such as ‘critical mass.’ Prior to Grutter, applicants could see how many points their skin color was worth, but now they can only guess while admissions officers make race-based decisions behind closed-doors.”
‘Citizens Deserve Clarity’
The majority on the 5th Circuit panel did not prioritize the need for openness and transparency in its ruling against Fisher.
“We are persuaded that to deny UT-Austin its limited use of race in its search for holistic diversity would hobble the richness of the educational experience…,” the majority wrote.
We find force in the argument that race here is a necessary part, albeit one of many parts, of the decisional matrix where being white in a minority-majority school can set one apart just as being a minority in a majority-white school—not a proffer of societal discrimination in justification for the use of race, but a search for students with a range of skills, experiences and performances—one that will be impaired by turning a blind eye to the differing opportunities offered by the schools from whence they came.
The Heritage Foundation’s Elizabeth Slattery, a legal fellow who criticized the 5th Circuit’s decision, said the ruling contradicts the 14th Amendment’s equal protection guarantee.
“The government should not be in the business of sorting people by such innate characteristics as race and ethnicity,” Slattery wrote for The Daily Signal. “The University of Texas is, after all, a state-run school and its use of racial preferences remains discriminatory.”
If the Fisher case does find its way back to the Supreme Court, it would put the Grutter precedent front and center. In their concurring opinions attached to Fisher, Justices Antonin Scalia and Clarence Thomas both indicated they would be willing to issue a broader ruling against race preferences.
Only by overturning Grutter can the court infuse the admission process with a sufficient amount of openness and transparency to safeguard 14th Amendment rights, Gratz said.
“Citizens deserve to have clarity when it comes to whether or not universities are holding their skin color against them,” she said.