This week, Abigail Fisher asked the Supreme Court to review her case against the University of Texas at Austin for race-based discrimination for a second time.
Students who graduate in the top 10 percent of Texas high schools are automatically admitted to all state-funded schools, and remaining applicants, such as Fisher, receive a “holistic review” that includes preferences for underrepresented minorities. Fisher was denied admission and sued the university for discriminating against her based on race.
In Grutter v. Bollinger (2003), the Supreme Court upheld racial preferences in state school admissions, to the extent that they pass strict scrutiny, which means they are “narrowly tailored to further compelling governmental interests.”
The court also determined that reaching a “critical mass” of diversity on campus to aid students in “obtaining the educational benefits of diversity” is a compelling interest.
But in the 2013 Fisher decision, the Supreme Court held schools must prove their use of race meets that standard. The court determined the lower courts gave too much deference to the University of Texas when examining whether its use of race was narrowly tailored. The Supreme Court sent the case back to the lower court to apply strict scrutiny (the highest level of scrutiny) to establish whether it was necessary for the university to use race to achieve a critical mass.
The Supreme Court stressed that the lower court must look at actual evidence and not “simple…assurances of good intention” from the university. But on remand, a three-judge panel of the 5th Circuit upheld the school’s plan once again, finding that the school’s newly asserted interest in “qualitative” diversity—enrolling more minority students from majority-white high schools—justified its use of racial preferences. The university claimed Texas’ top 10 percent plan admitted “too many” minority students from high schools with mostly minority populations (who apparently don’t provide the “right” kind of diversity).
One judge dissented, noting the 5th Circuit deferred to the university (against the Supreme Court’s instructions) instead of requiring it to articulate its compelling interest and forcing it to provide evidence that racial preferences were needed to further that interest.
In her petition to the Supreme Court, Fisher gave three reasons why the justices again should grant review:
- The 5th Circuit did not follow the Supreme Court’s instructions to apply strict scrutiny without deferring to the school, which could point to “no record evidence …to substantiate its asserted unmet need for ‘qualitative’ diversity.”
- The university’s noxious “qualitative” diversity rationale cannot survive strict scrutiny because it is not clear, legitimate or narrowly tailored to achieve any compelling interest recognized by the Supreme Court.
- The Supreme Court must ensure strict scrutiny is used to guarantee that “racial preferences do not trample the right to equal protection.” If allowed to stand, the 5th Circuit’s decision rubberstamping the university’s “qualitative” diversity rationale will signal to schools across the country that their use of race will not be subject to meaningful judicial review.
With the Fisher case, and new lawsuits challenging the use of preferences at Harvard and the University of North Carolina-Chapel Hill, the Supreme Court may have the opportunity to do away with racial preferences in college admissions. A majority of the Supreme Court justices have questioned their continued legitimacy, and 12 years ago, in Grutter v. Bollinger, Justice Sandra Day O’Connor wrote: “We expect that 25 years from now, the use of racial preferences will no longer be necessary….”
At this halfway point, let’s hope the justices realize the time is now and heed Chief Justice John Roberts’ admonition: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
This piece originally appeared in The Daily Signal