The Supreme Court heard arguments in a case Wednesday that could gut race-based affirmative action at American universities — a case it's now hearing for the second time.
The Court first heard Fisher v. Texas, a lawsuit from a white Texas undergraduate who wasn't admitted to the University of Texas Austin, in 2012. The justices sent the case back to a lower court, arguing that it hadn't used a strict enough standard to judge the university's actions. The Fifth Circuit reconsidered the case, Fisher lost again, and she again appealed to the Supreme Court.
According to reports from the courtroom from Yahoo News's Liz Goodwin, the conservative justices, particularly Chief Justice John Roberts, seemed skeptical not just of the University of Texas's program, but of the entire concept of race-based affirmative action:
Roberts asked again and again when schools could stop considering race and when affirmative action would end— Liz Goodwin (@lizcgoodwin) December 9, 2015
Roberts also challenged UT's classroom diversity argument "What unique perspective does an Af-Am student bring to a physics class?"— Liz Goodwin (@lizcgoodwin) December 9, 2015
The fact that Fisher v. Texas is back before the Supreme Court yet again signals that at least four Supreme Court justices might think the time is right to end affirmative action on college campuses, despite a 2003 decision in which Justice Sandra Day O'Connor, writing for the majority, said affirmative action would probably be needed for another 25 years.
Abigail Fisher didn't get into the University of Texas — so she sued
Most students get into UT Austin without race being considered at all. The university, the state's flagship, admits most of its students through a program that grants admission to the top 10 percent of every high school class in the state.
The system was developed as a back-door way to create more diversity. A 1997 case, Hopwood v. Texas, forbade the consideration of race in admissions at Texas public universities. Because schools in Texas, as in the rest of the US, are bastions of de facto segregation, admitting the top 10 percent of the graduating class from each high school in Texas was a way for the university to tacitly diversify its freshman classes.
But the top 10 percent plan didn't consider any markers of academic achievement other than class rank. A world-class trumpeter with mediocre grades, or a National Merit semifinalist who happened to attend a very high-achieving high school, could be shut out.
To address those problems, the university also admits less than 20 percent of its incoming classes by looking at applicants in a more holistic way. Initially, because race-based affirmative action was banned in Texas, those criteria included socioeconomic status and whether students' parents had attended college.
Six years after the Hopwood decision in Texas, the US Supreme Court held that narrowly tailored affirmative action programs could be constitutional, and the UT Austin admissions process began considering race as one criterion.
Abigail Fisher, who applied to the University of Texas in 2008, didn't qualify under the top 10 percent plan, nor was she admitted under holistic review. She claimed in a video posted by the Project on Fair Representation, the organization that represents her, that less-qualified high school classmates got in because they were nonwhite — and that the University of Texas was discriminating against her based on her race.
This isn't quite the full story. The year Fisher was admitted, 92 percent of the University of Texas freshman class gained enrollment through the 10 percent plan. For the 8 percent admitted through the holistic process, university admissions officials reviewed their qualifications and gave them two scores: one based on essays, leadership activities, and background, including race, and one based on grades and test scores.
Fisher's academic qualifications were just average, and the university claimed that she wouldn't have been admitted even if she did get an extra boost for being a member of a minority group.
As ProPublica reported in 2013, although some students who were overall less qualified than Fisher were admitted that year, the vast majority were white. More than 150 black and Latino students who were deemed better qualified were turned away.
But that didn't really matter. The case wasn't about Fisher — it was about the constitutionality of affirmative action itself.
Why Fisher is a threat to affirmative action
Fisher's case got all the way to the Supreme Court. In a 7-1 decision in 2013, the justices sent it back to the Fifth Circuit, saying the court should have used a higher legal standard, "strict scrutiny." This meant they thought the circuit court hadn't been tough enough on the University of Texas and had been too quick to give the university the benefit of the doubt.
The Fifth Circuit reconsidered the case and, even with the higher standard, ruled against Fisher again.
The Supreme Court's previous decisions on affirmative action, the majority wrote, required them to do so: "To reject the UT Austin plan is to confound developing principles of neutral affirmative action, looking away from Bakke and Grutter, leaving them in uniform but without command — due only a courtesy salute in passing."
In other words, if the Supreme Court wants to overturn affirmative action, it needs to address its own precedents. In Bakke v. California in 1978, the Court ruled that colleges can't use a quota system to ensure they have enough diversity, but that affirmative action was constitutional in some circumstances.
The last major decision about affirmative action was 2003's Grutter v. Bollinger, a case about the University of Michigan's affirmative action policies.
In that 5-4 decision, the Court ruled that colleges could take race into account as one factor in a holistic review when admitting applicants. The Court found that the educational benefits of diversity were a compelling reason to create a diverse student body, but that affirmative action programs would need to be "narrowly tailored" — essentially decided on a student-by-student basis, as Texas's holistic review program is.
Grutter established affirmative action not as a remedy for past, or even continuing, racial injustices — constitutionally speaking, it's not enough to give black or Latino students a boost because of the persistence of school segregation or the racial wealth gap. The reason for a diverse student body, according to the case, is to enrich the educational experience for everyone.
Justice Sandra Day O'Connor, writing for the majority, said she expected the Grutter decision to stand for 25 years. But the Court initially took Fisher's case just nine years later.
Given the Court's previous decisions on racial issues, including those dealing with education, this suggests that the justices might be interested in reopening the question of whether affirmative action is constitutional.
Kennedy has replaced O'Connor as the Court's swing vote, and he's more skeptical of affirmative action. He dissented in the Grutter case, and wrote the decision in 2013 that sent Fisher's case to a lower court.
There are less dramatic options than a ruling reconsidering the constitutionality of affirmative action, or restricting even more tightly how universities can use it. The Court could also split on a 4-4 decision — Justice Elena Kagan will recuse herself because she dealt with the case as solicitor general — or simply send it back to the Fifth Circuit yet again.
Kennedy, who will probably be the deciding factor, seemed irritated at the Groundhog Day–like persistence of the Fisher case:
Kennedy seemed annoyed that SCOTUS is essentially re-hearing the same case 3 yrs later w/ no new evidence— Liz Goodwin (@lizcgoodwin) December 9, 2015