The Latest of Affirmative Action in Higher Education, Part II

Last week, the U.S. Supreme Court again upheld the use of race-conscious admissions policies in higher education. Ending an eight-year legal battle, the Court, inĀ Fisher v. University of Texas, held that the plaintiff had failed to show by a preponderance of the evidence that she was denied equal treatment in violation of the Equal Protection Clause when she was denied undergraduate admission to the University of Texas. As you may recall from a previous post on this case, the plaintiff, Abigail Fisher, filed suit in federal district court after she was denied undergraduate admission in 2008, claiming that had it not been for the university’s use of race as a factor in its admissions policy, she was would have been granted admission.

In 2008, the University of Texas used a two-part system to admit students: (1) the Top Ten Percent Plan, and (2) a full-file holistic review. The Top Ten Percent Plan is mandated by Texas law, and generally provides that any student who graduates in the top ten percent of their high school class in Texas is automatically granted admission to any state school of their choice. This alone made up about 75% of the University of Texas’s freshman class in 2008. The remaining 25% were admitted based on a holistic review of each student’s application. Without getting into too much detail, race was one subfactor that could be considered during this holistic review. The plaintiff did not graduate in the top 10% of her high school class, so her application was subject to the university’s holistic review. The plaintiff, a white female, was not admitted.

In general, anytime a government entity uses race as a classification for a certain group of individuals to either receive an advantage or be disadvantaged, then the use of that classification is subject to the most stringent judicial review, strict scrutiny. That means that when a racial classification is challenged under the Equal Protection Clause, the government entity must show that it had a compelling governmental interest in using the racial classification, and that its use was narrowly tailored to meet that interest. Obtaining diversity in a higher education setting is a compelling state interest. The Court decided that issue several years ago. Universities cannot impose simple racial quotas. They can, however, devise a race-conscious admissions policy that increases the diversity of its student body, and in doing so, the university must specify the its goals for the use of such a policy.

In this case, the Court ruled that the University of Texas’s use of race in its full-file holistic review for admissions was constitutional. The Court found that the university had “articulated concrete and precise goals” for its policy and had appropriately identified the educational values that it sought to achieve, such as “the destruction of stereotypes”, the “promotion of cross-racial understanding”, and the “preparation of a student body for an increasingly diverse workforce and society.” The Court further found that the university’s use of the holistic review had a meaningful effect on the diversity of the university’s admissions, and that the evidence supported the university’s assertion that there were no other race-neutral alternatives that could achieve its goals.

This is certainly a win for higher education officials, and for affirmative action in general. This case demonstrates, at least for now, that race-conscious admissions policies in higher education are here to stay.


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