On June 23, the Supreme Court announced its decision in the case of Fisher v. University of Texas at Austin, which decided whether an admissions system which considers the race of the applicant is constitutional. In Texas, the top ten percent of high school students are guaranteed admission if they want it. The remainder of the incoming freshman class, about 25 percent, is filled by considering the academic performance as well as other factors, race being among them. The “Top Ten Percent” law has been in effect since 1997, and UT-Austin has been using its current admissions process since 2004. UT-Austin adopted its current policy after concluding that its prior race-neutral process did not reach its goal of a more diverse student body. The justices decided by a 4-3 vote that “[t]he race-conscious admissions program in use at the time of petitioner’s application is lawful under the Equal Protection Clause.” UT-Austin may therefore continue using its current system.

The majority opinion was delivered by Justice Anthony Kennedy and was joined by Justices Stephen Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor. Justice Clarence Thomas filed a dissenting opinion. Justice Samuel Alito filed another dissenting opinion which was joined by Chief Justice John Roberts and Justice Thomas. Justice Elena Kagan recused herself from the case.

Writing for the majority, Justice Kennedy said, “A university is in large part defined by those intangible ‘qualities which are incapable of objective measurement but which make for greatness.’ Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission. But still, it remains an enduring challenge to our Nation’s education system to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity. In striking this sensitive balance, public universities, like the States themselves, can serve as ‘laboratories for experimentation.’ The University of Texas at Austin has a special opportunity to learn and to teach. The University now has at its disposal valuable data about the manner in which different approaches to admissions may foster diversity or instead dilute it. The University must continue to use this data to scrutinize the fairness of its admissions program; to assess whether changing demographics have undermined the need for a race-conscious policy; and to identify the effects, both positive and negative, of the affirmative-action measures it deems necessary. The Court’s affirmance of the University’s admissions policy today does not necessarily mean the University may rely on that same policy without refinement. It is the University’s ongoing obligation to engage in constant deliberation and continued reflection regarding its admissions policies.”

In his dissent, Justice Thomas said, “[T]he Court’s decision today is irreconcilable with strict scrutiny, rests on pernicious assumptions about race, and departs from many of our precedents. I write separately to reaffirm that ‘a State’s use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause.’ ‘The Constitution abhors classifications based on race because every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all.’ That constitutional imperative does not change in the face of a ‘faddish theory’ that racial discrimination may produce ‘educational benefits.’ The Court was wrong to hold otherwise in Grutter v. Bollinger (2003). I would overrule Grutter and reverse the Fifth Circuit’s judgment.”

In his dissent, Justice Alito said, “Something strange has happened since our prior decision in this case. In that decision, we held that strict scrutiny requires the University of Texas at Austin (UT or University) to show that its use of race and ethnicity in making admissions decisions serves compelling interests and that its plan is narrowly tailored to achieve those ends. Rejecting the argument that we should defer to UT’s judgment on those matters, we made it clear that UT was obligated (1) to identify the interests justifying its plan with enough specificity to permit a reviewing court to determine whether the requirements of strict scrutiny were met, and (2) to show that those requirements were in fact satisfied. On remand, UT failed to do what our prior decision demanded. The University has still not identified with any degree of specificity the interests that its use of race and ethnicity is supposed to serve. Its primary argument is that merely invoking ‘the educational benefits of diversity’ is sufficient and that it need not identify any metric that would allow a court to determine whether its plan is needed to serve, or is actually serving, those interests. This is nothing less than the plea for deference that we emphatically rejected in our prior decision. Today, however, the Court inexplicably grants that request. To the extent that UT has ever moved beyond a plea for deference and identified the relevant interests in more specific terms, its efforts have been shifting, unpersuasive, and, at times, less than candid.”

The case began in 2008 when Abigail Fisher, a Caucasian woman who was not in the top ten percent of her high school class, was denied admission to UT-Austin’s freshman class. She filed suit, alleging that the University’s consideration of race in its admissions process disadvantaged Caucasian people in violation of the Equal Protection Clause of the Fourteenth Amendment. The U.S. District Court and the Fifth Circuit Court of Appeals sided with the University. The Supreme Court vacated the judgment in 2013 and remanded the case back to the Court of Appeals, which again sided with the University.

In the interest of fairness, it must be noted that this was an exceptionally poor test case. Of the 47 students with grades lower than Fisher’s who were admitted, only five of them were racial minorities. There were also 168 racial minority students with grades equal or greater to Fisher’s who were denied admission that year. Furthermore, Fisher turned down an offer under which she could have attended another Texas university her freshman year, earned at least a 3.2 GPA, and transferred to UT-Austin for her sophomore year. But what of a white student with a superior record to that of Fisher, but not quite in the automatic top ten percent? Such a student can be denied admission under standards like that of UT-Austin (which exist elsewhere as well) in favor of a student of minority race with inferior academic performance. The Supreme Court has affirmed a standard of racial diversity over pure meritocracy, and because there are measurable intelligence differences between population groups, has upheld a policy of anti-white and (anti-Asian) racism in doing so.

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