Today the Supreme Court will hear oral arguments addressing the constitutional validity of affirmative action in higher education. The case involves a white woman, Abigail Fisher, who applied to the University of Texas in 2008. Ms. Fisher claims she was denied admission despite demonstrating academic credentials that were superior to minority students who had gained admission. The University of Texas claims that its affirmative action program is aligned with previous Supreme Court decisions permitting the consideration of an applicant’s race “in an individualized and modest manner.” However, Ms. Fisher argues that under a strict scrutiny standard the University’s use of race in admissions decisions does not serve a “compelling state interest” and rather the University disguises its efforts as a means of promoting the educational well being of students when they are actually engaging in unconstitutional “racial balancing.” In the alternative, even if the University has a compelling interest in creating a diverse student body, it has not employed means that are “narrowly tailored” to serve that interest. Ms. Fisher argues that the University’s race neutral plan achieved the desired level of diversity. The “Top 10% Law”, as it is called, guaranteed admission to in-state high schools seniors who ranked among the 10% of their class.
The University rebuts these arguments by citing Supreme Court precedent that acknowledged a compelling interest in creating a diverse student body and asserted that race may be used as one of many factors in evaluating an applicant’s file. The University states that: “race is only one modest factor among many others weighed; it is considered only in an individualized and contextual way that examine[s] the student in their totality.” The University refers to its admission process as a “holistic” evaluation whereby an applicant’s entire file is evaluated including extracurricular activities, leadership potential, honors and awards, and community service.
In the 2003 case, Grutter v. Bollinger, the Court upheld the use of race as a factor in selecting students for admission at the University of Michigan Law School. The five-to-four decision delivered by Justice Sandra Day O’Conner held that the Law School’s use of race as a factor in the admissions decision process did not violate the Equal Protection Clause of the Fourteenth Amendment. Rather, the schools policy served a “compelling interest” in harnessing the educational benefits derived from diversity. Since this decision, nine years ago, five of the nine Justices remain on the bench. Justice Stephen G. Breyer and Justice Ruth Bader Ginsburg were among the majority in the 2003 decision while Justices Anthony M. Kennedy, Antonin Scalia and Clarence Thomas remain among the dissenters. Justice Kagan served as President Barack Obama’s solicitor general at the time the Justice Department became involved in this case and she has therefore recused herself. The absence of Justice Kagan leaves open the possibility of a four-to-four split which would effectively uphold the Fifth Circuit’s decision in favor of the University.
A special thanks to Cynthia M. Thomas for helping with this post. Cynthia is a third-year law student at Hofstra University School of Law.