The U.S. Supreme Court announced on Monday that it would revisit a lawsuit challenging how the University of Texas at Austin considers race and ethnicity in admitting undergraduates, setting the stage for yet another heated national debate over affirmative action at colleges.
The justices previously weighed in on the case, Fisher v. University of Texas at Austin, just two years ago. They handed down a 7-to-1 decision that was regarded as an incremental victory for the plaintiff, Abigail Noel Fisher, a white applicant who sued the university for discrimination after being denied admission to the Austin campus, in 2008.
In its 2013 Fisher ruling, the Supreme Court struck down a lower court’s summary judgment in the university’s favor, but left intact its precedents allowing colleges to consider race in admissions to advance a compelling government interest in campus diversity. The majority opinion said the lower court had erred in essentially accepting at face value the university’s claims that it had seriously considered race-neutral alternatives to its policy and had narrowly tailored the policy to assign race or ethnicity no more weight than necessary. The lower court was ordered to reconsider the case.
Ms. Fisher’s lawyers asked the Supreme Court to take up the case a second time after the U.S. Court of Appeals for the Fifth Circuit last year again upheld the Austin campus’s policy.
The new appeal, No. 14-981, will be heard during the court’s 2015 term, which begins in October, with a ruling expected by the summer of 2016.
What follows are answers to key questions raised by the Supreme Court’s decision to revisit the Fisher case.
Why did the Supreme Court take up this case again?
We don’t know for certain because the court — as is its custom — did not elaborate on its decision to hear the case a second time. But its decision signals that at least four justices regard the dispute as worth a second look.
In asking the court to revisit the case, Ms. Fisher’s lawyers complained that the Fifth Circuit had again taken the university’s claims at face value. They warned that if the justices failed to review the Fifth Circuit’s decision, such a move would signal to colleges and courts throughout the nation that the Supreme Court’s first Fisher ruling was “a green light for racial preferences in admissions decisions.”
Judge Emilio M. Garza, the dissenting member of the Fifth Circuit panel that voted 2 to 1 to uphold the university’s policy, has made similar arguments. He has asserted that the Fifth Circuit court erred by not demanding that the university clearly define what it meant in seeking a “critical mass” of minority students.
With Justice Elena Kagan, a liberal who helped defend Texas’ policies in her previous position as U.S. solicitor general, having recused herself from the Supreme Court’s previous deliberations over Fisher and its latest decision to revisit the dispute, Ms. Fisher’s lawyers may already have an edge in the battle for Supreme Court votes.
Is any new legal question at issue?
Yes, and it has the potential to reframe how courts and colleges think about campus diversity.
In its second go-round before the Fifth Circuit, the university said it needed to consider race and ethnicity in undergraduate admissions to ensure socioeconomic diversity within the populations of minority students that it enrolls. It argued that too few minority students from relatively wealthy backgrounds are represented among those it admits through Texas’ “top 10 percent plan,” a state law guaranteeing college admission to in-state applicants who are in the top tenth of their high-school class.
In appealing the Fifth Circuit’s ruling to the Supreme Court, Ms. Fisher’s lawyers argued that the Austin campus’s professed interest in class-based diversity within minority populations is something concocted late in the game, an effort to justify a policy created for entirely different reasons. They asserted that the Fifth Circuit had erred in accepting this “qualitative” diversity rationale for race-conscious admissions, which has not been explicitly debated before the Supreme Court.
The rationale, they said, “is based on demeaning and unfounded stereotypes about less-privileged applicants from minority communities.” It also conflicts with a university policy that gives extra consideration to low-income students to promote diversity, and thwarts the court’s efforts to ensure that race-conscious admission policies are narrowly tailored by giving the university “absolute discretion to use race as long as it wishes,” they argued.
Considering how poorly students from modest backgrounds are represented at most selective colleges, pulling considerations of economic diversity into the legal debate over race-conscious admissions could cause that debate to spin off in any number of new directions.
Does the recent University of Texas admissions scandal factor in?
Ms. Fisher’s lawyers filed their Supreme Court appeal in January, before news broke that the president of the Austin campus, William C. Powers Jr., had overseen a separate, side-door process for considering favored applicants, many of whom had political connections. (Mr. Powers stepped down this month as president.)
But in weighing whether to hear the case a second time, the Supreme Court had before it a separate brief, from the Cato Institute, which argued that the Texas admissions scandal raised doubts about the university’s characterizations of its admissions process and its sincerity in claiming to seek diverse enrollments. The Project on Fair Representation, the advocacy group that mounted Ms. Fisher’s legal challenge, cited the scandal on Monday in its news release hailing the Supreme Court’s decision to take up the case.
The Supreme Court conceivably could have responded to the latest petition to hear the Fisher appeal by ordering a lower court to conduct a trial to sort out the facts underlying the case. It didn’t, but that won’t stop Ms. Fisher’s lawyers and other opponents of race-conscious admissions policies from using the scandal to try to undermine Texas’ credibility.
How does this case relate to other pending legal challenges to race-conscious admissions? Are other colleges’ admissions policies in jeopardy?
With most of the Supreme Court’s conservative members strongly opposed to the consideration of race in college admissions, any case on the issue represents a potential vehicle for the court to overturn two landmark precedents allowing such policies: its 1978 decision in Regents of the University of California v. Bakke and its 2003 decision in Grutter v. Bollinger, involving the University of Michigan at Ann Arbor’s law school.
Conservative groups that oppose race-conscious admissions policies, and higher-education and civil-rights groups that want to keep such policies in place, are likely to deluge the justices with friend-of-the-court briefs based on the assumption that the stakes may be that high.
The petition for a new hearing from Ms. Fisher’s lawyers did not request such a sweeping decision, however. It appears almost certain they will focus, as they did the last time the Supreme Court heard the case, on the narrow question of whether the university has complied with the guidance provided by the Supreme Court in its past decisions.
The new Supreme Court battle comes as an advocacy group connected with the Project on Fair Representation has mounted separate federal lawsuits against Harvard University and the University of North Carolina at Chapel Hill urging an end to race-conscious admissions. Those lawsuits, however, were brought only last fall and have not progressed nearly far enough in the courts to formally factor much into the Supreme Court’s Fisher deliberations. A more likely scenario is that the Supreme Court’s next Fisher decision will influence how the courts resolve the challenges to Harvard and North Carolina.
Peter Schmidt writes about affirmative action, academic labor, and issues related to academic freedom. Contact him at peter.schmidt@chronicle.com.
