Fisher v. University of Texas: Racial Preferences at the Supreme Court
Elizabeth Slattery / John G. Malcolm /
Jim Pickerell Stock Connection Worldwide/Newscom
Today, the U.S. Supreme Court issued its long-awaited decision in the challenge to the University of Texas’s consideration of race in its undergraduate admissions program. The ruling is a limited win for those who want a truly colorblind society.
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, challenged the university’s consideration of race after her application for admission was denied.
The Court ruled that the lower courts were too deferential to the university’s judgment upon reviewing its admissions plan. The Court has previously stated that racial classifications are constitutional so long as they pass strict scrutiny review, which requires that the university prove that the classification is “narrowly tailored to further compelling governmental interests.” “On this point,” the Court held that the university is entitled to “no deference.” The Court noted that strict scrutiny review must not be “strict in theory but feeble in fact.” Fisher’s case will head back to the U.S. Court of Appeals for the Fifth Circuit for this more searching examination.
In Regents of the University of California v. Bakke and again in Grutter v. Bollinger, the Court acknowledged that achieving diversity in the student body of state-run universities can be a compelling interest to the extent that it furthers the school’s educational goals. However, when schools use race-conscious admissions plans, they may not use racial quotas and must “remain flexible enough to ensure that each applicant is evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application.” Although state schools do not need to exhaust “every conceivable race-neutral alternative,” there must be “no workable race-neutral alternative [that] would produce the educational benefits of diversity.”
In today’s decision, seven justices signed on to the majority opinion, with only Ruth Bader Ginsburg dissenting. (Elena Kagan recused herself due to her work as Solicitor General while the case was pending before the Fifth Circuit.) Antonin Scalia and Clarence Thomas declared that they were prepared to overturn Grutter, and Thomas, a staunch opponent of racial preferences, argued that “only a social emergency rising to the level of imminent danger to life and limb” might be a compelling enough interest to justify racial discrimination.
While today’s decision is somewhat of a compromise, it is still a victory for defenders of equal protection. The Court reiterated that it is “irrelevant” that racial preferences “may seem benign” and that courts should not defer to governmental actors simply because they had a good faith reason for resorting to racial discrimination. When the government gets in the business of sorting people by race or ethnicity, the courts should provide real oversight rather than rubberstamping racial preferences that actually do more harm than good.
As Chief Justice John Roberts stated in the 2007 Parents Involved case: “Racial balancing is not transformed from ‘patently unconstitutional’ to a compelling state interest simply by relabeling it ‘racial diversity.’… The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”