Much Ado About Nothing

By Connie de la Vega
Jun 23, 2016

The U.S. Supreme Court upheld the University of Texas’ admission program that considers race as one of seven factors in the second part of its undergraduate admissions’ system. This second part affects about 25% of the students admitted to the University of Texas, where the majority of students are admitted through the State’s Top Ten Percent Law which requires that the top 10% of all applicants from each high school be admitted to the University. Justice Kennedy wrote the majority opinion and was joined by Justices Ginsburg, Breyer and Sotomayor. Justices Thomas, Alito and Roberts dissented, filing two separate opinions between them. Fisher v. University of Texas at Austin, http://www.supremecourt.gov/opinions/15pdf/15-674_jhlo.pdf.

In addition to pointing out that Ms. Fisher did not challenge the main admission policy which she was not admitted under, the Court also noted that she had already graduated from another University. She also had failed to establish any alternatives that the University could have used to ensure its goal of attaining a diverse student body. While not coming out and saying so, the Court intimated that all these factors indicated that there was not a real dispute at hand. The Court did determine that the University’s secondary policy for achieving diversity was legitimate since relying solely on class rank under the Top Ten Percent Law created a perverse incentive for applicants to stay in low performing schools or discourage them from taking more difficult classes. Slip Opinion at 18, citing Justice Ginsberg’s dissent in Gratz v. Bollinger.

Indeed, the lack of a real dispute resulted in the Court re-affirming the prior decisions on affirmative action. In addition to the Gratz case, these included Grutter v. Bollinger and the 2013 decision in this case. Fisher v. University of Texas at Austin (Fisher I). The Court also determined that the initial decision to implement a second policy in addition to the Top Ten Percent Law met the strict scrutiny standard and there was no need to remand it for evaluation of whether the use of the policy met the standard in practice since it had only been in place for three years when Ms. Fisher applied.

While it would appear that the case appears to present much ado about nothing, it is important that it affirms the use of race in admissions policies for purposes of attaining diversity goals. It also does provide some additional guidance to Universities regarding what the strict scrutiny standard requires when using race in this context. The Court also provides some guidance to plaintiffs who seek to challenge these policies.

Professor de la Vega authored an amicus brief on behalf of human rights advocates in the Fisher case.