SCOTUS: Affirmative Action OK at UT

University of Texas at Austin admissions officers can continue to consider race in offering places to students. That’s the decision of the U.S. Supreme Court, handed down this morning on a 4-3 split.

The case in question was Fisher v. University of Texas at Austin, brought by two failed UT applicants (Abigail Fisher and Rachel Michalewicz). Since the initial filing in 2008, both have graduated from other schools, and Michalewicz eventually withdrew from the suit. It lost before the U.S. District Court for the Western District of Texas and the 5th Circuit. SCOTUS had already heard the case and bounced it back to the 5th Circuit in 2013 for further evidentiary consideration. In 2015, the case was back with SCOTUS, and this time they upheld the 5th Circuit ruling against Fisher.

The Texas state college admission system is stuck with (and commonly misreported as) the name of the Top 10% rule, whereby any student that graduates within the upper percentile of their graduating high school class is offered automatic admission to a public college or university. That used to be the top 10% of a class, but UT has an exception that drops that down to 8% for the upcoming school year, and only 7% for 2018. Since 2009, lawmakers have also capped the maximum number of those automatic acceptance seats to 75%.

The top 10 (or eight or seven) wasn't Fisher's target. Instead, she was suing over how that other 25% were handled. The UT admissions department currently takes a holistic approach to admissions, including SATs, high school records, nonacademic achievements, and, yes, race. The purpose there is very simple, and is designed to achieve the same end goal as the admissions for the first 75%: to create as diverse a student community as possible and bring up talented undergraduates from all backgrounds. Fisher's attorneys claimed that process discriminated against her and other Caucasian applicants and violated the Equal Protection Clause.

However, the court rejected Fisher’s argument. Justices Ruth Bader Ginsburg, Stephen Breyer, Anthony Kennedy, and Sonia Sotomayor ruled against her, and the conservative rump of Samuel Alito, Clarence Thomas, and Chief Justice John Roberts dissenting (Elena Kagan had previously recused herself, as she worked on the case as U.S. Solicitor General).

The surprising twist here is that Kennedy (who has previously sided against any race-based affirmative action) not only sided with the majority, but penned the majority opinion. However, that arguably indicates that even Kennedy was won over by the overall balance of the admissions process. He even took a mild swipe at Fisher’s argument, saying she would have had a better shot at getting into UT if it only used a race-based allocation. Instead, he wrote: "That race consciousness played a role in only a small portion of admissions decisions should be a hallmark of narrow tailoring, not evidence of unconstitutionality."

On the opposing side, Thomas continued his history of being what kinder critics would dub as taciturn, offering a one-page dissent in which he called affirmative action in education a “faddish theory.”

Then enter the 50-page dissent by Alito, who said that UT could achieve its aim of a more diverse student population and create space for students from groups with low historical college enrollment, without considering race. He further argued that the current system uses "a few crude, overly simplistic and ethnic categories" (a reasonable allegation that can be laid against much of data gathering in U.S. and Texas education). However, he then went full Godwin's Law by comparing affirmative action to Nazi-era Germany's Reich Citizenship Law.

However, there has been a rosier response to the majority decision from Texas Democratic Party Chairman Gilberto Hinojosa, who wrote that "the Supreme Court has reaffirmed that everyone who is willing to work hard and get good grades deserves access to a quality and affordable higher education."

Similarly, Sen. Kirk Watson, D-Austin, whose district includes UT Austin's 40 Acres, wrote that "the future of our state and our country depends upon creating opportunity for everyone. Today's U.S. Supreme Court decision helps us do that in higher education in Texas."