On Wednesday, Dec. 9, 2015, the U.S. Supreme Court is set to hear for a second time Abigail Fisher’s claim that the University of Texas uses race unconstitutionally in its student admissions process. Having sent the initial case back to the 5th Circuit (a de facto “no-decision”), what should we expect when the judges preside over the rematch?
A previous blog post provides background; in sum, the 5th Circuit originally upheld the University of Texas’s structuring of its admissions process, which considered race as a factor. The Supreme Court remanded with the directive to apply strict scrutiny (the most stringent form of judicial review) to decide if the University’s admissions program “is narrowly tailored to obtain the educational benefits of diversity.” The 5th Circuit again upheld the University’s admissions process, this time using the strict scrutiny standard. The Supreme Court allowing a second bout has some believing a more significant decision is forthcoming—one that might further restrict or even ban the use of race in admissions.
In one corner of the ring, we have Abigail Fisher, a white female who was not selected into U-T’s 2008 freshmen class. She has since graduated from LSU. Her main arguments are:
- Colleges and universities must articulate a compelling interest in educational diversity with clarity; a reviewing court cannot use the strict scrutiny standard if it does not know the precise reasons why the school thinks it must use race. U-T has never been clear about why it needs to use racial preferences.
- An institution must provide its clearly articulated reason at the time it makes the decision to use racial preferences—not after having its admissions policy challenged. U-T’s reasoning was made after the fact.
- A school must have enough evidence that the reason for using race is compelling, that it is necessary to use race to achieve that interest, and that the chosen means are narrowly tailored. U-T has relied on overbroad generalizations and has offered no evidence to support its admissions process.
In the other corner, we have the University of Texas, an institution of higher education that uses race as a meaningful factor, along with other factors, as it engages in a holistic review of applicants who are not automatically accepted under the State of Texas’s Top Ten Percent Law. Its main arguments are:
- Abigail Fisher, as a college graduate, cannot show that she has suffered an “injury in fact” or that any injury will be remedied by a favorable decision (as required for standing).
- U-T has asserted a compelling interest in considering race—the educational benefits of diversity—and has followed previous rulings from the Supreme Court recognizing that the diversity that produces educational benefits is complex.
- U-T’s policy is narrowly tailored and can survive strict scrutiny.
It remains to be seen whether Fisher v. University of Texas II will receive as much attention as the inevitable Mayweather-Pacquio II. This will largely depend on whether a majority of the Court uses this opportunity to overturn the Grutter precedent, a possible, but seemingly unlikely, outcome. Fortunately, those interested in listening to oral arguments need not spend $89.95 for PPV. Audio recordings of all oral arguments heard by the U.S. Supreme Court are available here at the end of the week in which the arguments are made.