When the U.S. Supreme Court hears arguments on Wednesday in a legal battle over race-conscious admissions at the University of Texas, look for the justices to focus less on the broad debate over such policies than on nuts-and-bolts questions defining when they stray beyond established law.
The Supreme Court has taken up the dispute before, handing down a June 2013 ruling in which a 7-to-1 majority held that lower courts had erred by approving Texas’ policy without giving it sufficiently strict legal scrutiny. The high court’s decision to revisit the case, Abigail Noel Fisher v. University of Texas at Austin, No. 14-981, signals that at least four justices suspect that the lower courts again had failed to get it right in approving the university’s policy a second time.
Conceivably, a majority of justices could reach beyond the narrow scope of the case to a question not presented by either party: whether to abandon the court’s past willingness to let colleges consider race as part of holistic admissions processes. Some conservative advocacy groups have filed friend-of-the-court briefs urging the justices to strike down all race-conscious admissions policies as impossible to square with federal antidiscrimination laws, while several higher-education and civil-rights groups focused their briefs on opposing that possible outcome.
The justices, however, will find no arguments for the policies’ complete elimination in briefs for Ms. Fisher, a white woman rejected by Texas in 2008. What those briefs request is a finding that Texas disobeyed the court’s guidance by considering applicants’ race unnecessarily, despite having achieved sufficient diversity through race-neutral means.
Here is a breakdown of the key questions before the court:
What’s the real basis of the lawsuit?
The two sides frame the legal challenge in starkly different terms.
Ms. Fisher’s legal team says it asks the court only to find that Texas failed to narrowly tailor its policy and considered race unnecessarily in pursuing its compelling interest in campus diversity.
Not so, says the university. It calls the narrow-tailoring challenge a ruse, a pretext for a backdoor attack on court precedents holding that academic freedom requires giving colleges leeway to decide what mix of students meets their educational needs.
At the crux of the disagreement is whether Austin enrolls enough black and Hispanic students even without considering applicants’ race. Ms. Fisher’s lawyers say yes. They note that it enrolls more such students than most other flagships through Texas’ “top 10 percent” plan, a law guaranteeing admission based on high-school class rank.
The university says such figures don’t tell the full story, because the beneficiaries of such percent plans disproportionately come from disadvantaged, heavily minority high schools. Lacking among them are students who have distinct talents not captured by the metric of class rank or who come from high schools that are more integrated or that don’t rank graduates.
The two sides trade accusations of stereotyping. Texas says Ms. Fisher’s lawyers assume little variation among members of minority groups. Ms. Fisher’s lawyers say Texas assumes students from low-income or predominantly minority schools have deficits that hinder their ability to contribute to diversity. If Texas truly wants more minority students from relatively affluent or integrated settings, they argue, it should stop giving extra consideration to economically disadvantaged applicants and start giving an edge to those from top high schools.
Is Texas being honest about its policy’s underpinnings?
Having never gone to trial, the case presents a daunting number of unsettled factual disputes. Among them is a disagreement over Texas’ true motives when it adopted its race-conscious admission policy in 2004, a year after the Supreme Court reaffirmed the constitutionality of such policies and thereby overturned appeals-court rulings barring them in Texas and elsewhere. The question is important because the court has said such policies must be designed to meet a clearly articulated government interest, and has precluded the fashioning of after-the-fact rationales for policies already in place.
Ms. Fisher’s lawyers assert that the university professed no concern about diversity within minority populations in adopting the race-conscious policy and initially defending it. Back then, they argue, Texas spoke of wanting to have a student body that better reflected the state’s highly diverse population and of wanting to promote diversity within its classrooms.
The Fisher lawyers responded by attacking the demography-based rationale as divorced from educational concerns, and by saying that Texas cannot maintain diversity within classrooms without using impermissibly large admissions preferences to bring about huge increases in minority enrollments. They allege that Texas, recognizing its vulnerability to such arguments, came up with the intraracial-diversity rationale to try to shore up its case.
Texas says such assertions distort the record because it never claimed to seek enrollments matching state demographics and lamented its lack of diversity within classrooms only as a symptom of a bigger problem.
What do the numbers say?
Texas enrolls 75 percent of each freshman class through the state’s top-10-percent plan, and considers race as part of a holistic admissions process used to fill remaining seats. The opposing sides in the case have offered up sharply different assessments of the outcomes of the two admissions processes. In sorting through their conflicting claims, the court will need to decide which numbers matter: counts of admittees, or only of students who actually enroll? Just Texans, or also students from elsewhere?
Along with claiming that the state’s 10-percent plan brings the Austin campus enough diversity, Ms. Fisher’s lawyers argue that the university’s consideration of race in holistic admissions actually brings in too few black and Hispanic students to pass the court’s muster. (They cite a 2007 Supreme Court ruling, involving a Seattle public-school integration plan, that treated the small impact of the plan’s race-conscious provisions as a fatal flaw signaling that race-neutral means might work better.)
Here the fight over numbers continues. Texas predicts that its minority enrollments will drop substantially without race-conscious admissions. Ms. Fisher’s lawyers peg the expected decline at a few dozen students, a loss easily recuperable through tweaks in the holistic process’s academic standards.
Should the Supreme Court even be hearing the case?
Throughout the legal battle, Texas has argued that Ms. Fisher lacks any real standing to be before the courts. She would have been denied admission, it says, even if race had played no role. Moreover, it adds, in enrolling at Louisiana State University and earning a bachelor’s degree there in 2012, she rendered her case moot. As it did during the last round before the Supreme Court heard the case, Texas asks the justices to either dismiss her lawsuit or drop the case as having been taken up in error.
Ms. Fisher’s lawyers say that what matters is not whether Texas would have admitted her but whether it subjected her to unequal treatment. They argue that it’s never too late for a court to order Texas to return her application fee.
Peter Schmidt writes about affirmative action, academic labor, and issues related to academic freedom. Contact him at peter.schmidt@chronicle.com.
