While this case does support affirmative action, the Supreme Court carefully limited this decision to the circumstances before it and repeatedly cautioned the University of Texas (UT) to maintain vigilance to ensure that its use of race continues to be necessary.
In 2003, UT had a multi-faceted and involved admissions process with two distinct tiers. The first tier complied with the Top Ten Percent Law in effect in Texas. Students graduating from a Texas high school in the top 10% of their class were guaranteed college admission under the law. However, this guarantee was capped at 75% of admitted students.
For the remaining 25% of its admitted class and its second tier, UT relied upon a combination of two indexes to create a holistic picture. First, UT looked at the Academic Index, which was calculated using an applicant’s SAT score and academic performance in high school. The second index used was the “Personal Achievement Index” (PAI). PAI was a numerical score that included “the applicant’s essays, leadership and work experience, extracurricular activities, community service, and other ‘special characteristics,’” all of which would provide a comprehensive view of the applicant.
The Supreme Court’s 2003 decision in Grutter v Bollinger triggered UT’s use of race as a “special characteristic” factor. In Grutter, the University of Michigan Law School’s admission system of holistic review was ruled to be constitutional. Michigan handled race as a “relevant feature” within the “broader context of a candidate’s application.” UT undertook a yearlong study to understand whether its omission of race as a factor in the admission process was allowing it to create “the educational benefits of a diverse student body…to all of the University’s undergraduate students.” At the conclusion of the investigation, UT found that its current policy was insufficient. Thus, UT adopted a new admissions policy that allowed it to take race into consideration as part of the “special characteristics” heading.
Race was utilized in UT’s admissions in a very controlled manner. PAI was rated on a number scale between 1 and 6 based on two components. A review of the two required essays comprised the first component. The second component was a full file review by a different reader who looked to supplemental information submitted by the applicant (such as resumes, letters of recommendation, artwork etc.), re-reviewed the essays, and then looked to the applicant’s potential overall contribution to the student body. “‘Special characteristics’ could have included the socioeconomic status of the applicant’s family, the socioeconomic status of the applicant’s school, whether the applicant lived in a single-parent home, the applicant’s SAT score in relation to the average SAT score at the applicant’s school, the language spoken at the applicant’s home, and finally, the applicant’s race.” Extensive training was provided to readers to ensure consistent scoring for applicants. Finally, a cut-off score for PAI/AI was given and students above that score were admitted. Admissions officers did not know the factors relied upon in reaching the scores given by the readers. The Supreme Court concluded that in this admission process, “consideration of race is contextual and does not operate as a mechanical plus factor for underrepresented minorities.”
It was this post-Grutter policy that was in place when Abigail Fisher applied to UT for undergraduate admission. She was not in the top 10% of her class and was thus part of the 25% “holistic” pool. She was denied admission. Ms. Fisher then sued, claiming that the use of race as part of the admissions process was to the disadvantage of her and other Caucasian applicants in violation of the U.S. Constitution’s Equal Protection Clause. The Equal Protection Clause provides that no State shall “deny to any person within its jurisdiction the equal protections of the laws.”
A public university’s affirmative action program will be subjected to strict scrutiny by the courts. The University’s interest in having such a program must be substantial and program must be necessary to accomplishing that interest.
Ms. Fisher did not challenge any aspect of the Top 10% law and consequently the Court had to accept it as a “given premise.” The diversity contributed by students admitted under that plan was not part of the record to compare to those students admitted via holistic review. Further fact-finding was not available to the Court because the admission process had been in effect just three years at time of Ms. Fisher’s rejection from UT, thus making any statistical evidence too small a sampling. The Court remarked on UT’s continuing obligation to periodically assess whether its admission policy with race continued to meet constitutional strict scrutiny i.e., that race played no larger role than necessary.
Ms. Fisher made four arguments to the Court in asking it to rule that UT’s admission process was unconstitutional. First, UT was required to be more specific about the level of minority enrollment needed to meet “critical mass.” Without that specificity, Ms. Fisher argued it could not be determined whether the admissions program was narrowly tailored. In response, the Supreme Court reiterated that universities are prohibited from instituting particular numbers or quotas. However, a university’s goals must be sufficiently measurable for the purposes of judicial scrutiny. In this instance, UT had met that standard. UT’s goal was an “academic environment that offers ‘a robust exchange of ideas, exposure to differing cultures, preparation for the challenges of an increasingly diverse workforce, and acquisition of competencies required of future leaders.’” These objectives had met the “compelling interest” standard established in prior Supreme Court cases. Moreover, the yearlong study conducted by UT had shown that race-neutral policies had not been successful in meeting those goals.
In her next argument, Ms. Fisher posited that UT had already met its diversity goals through the Top 10% plan and the race-neutral holistic review. Demographic data submitted by UT reflected stagnation in the percentage of minority students enrolled from 1996 and 2003. Other data showed that in 2002, 52% of the undergraduate classes with at least five students had no African-Americans in the class and 27% had just one African-American student. Twelve percent of these classes had no Hispanic students as compared to ten percent in 1996. The Supreme Court concluded that diversity goals had not been met.
The third argument was that consideration of race was unnecessary because it had a minimal impact in advancing UT’s objective. Data reviewed by the Court did not support this argument. In 2003, 11 percent of students enrolled through holistic review were Hispanic and 3.5% were African Americans. In 2007, the numbers went up to 16.9 percent for Hispanic applicants and 6.8% for African-Americans. “The fact 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,” according to the Supreme Court.
In her final argument, Ms. Fisher asserted that there were many other race-neutral methods to achieve UT’s goals. The Supreme Court disagreed, finding that UT had engaged in many outreach efforts to increase diversity prior to 2003 that were not successful. In her last ditch argument, Ms. Fisher argued for relying solely on an academic percentage plan for admissions. Again, the Supreme Court rejected her argument, questioning how many different kinds of diversity would be sacrificed in that scheme.
The opinion was concluded with a final urging to UT to continuously review whether “changing demographics have undermined the need for a race-conscious policy” and to constantly deliberate whether its admissions policies are necessary.