Today in Supreme Court History: December 9, 2015

12/9/2015: Fisher v. University of Texas at Austin II argued.

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Fisher v. University of Texas

Facts of the case

Abigail Fisher, a white female, applied for admission to the University of Texas but was denied. She did not qualify for Texas' Top Ten Percent Plan, which guarantees admission to the top ten percent of every in-state graduating high school class. For the remaining spots, the university considers many factors, including race. Fisher sued the University and argued that the use of race as a consideration in the admissions process violated the Equal Protection Clause of the Fourteenth Amendment. The district court held that the University’s admissions process was constitutional, and the U.S. Court of Appeals for the Fifth Circuit affirmed. The case went to the Supreme Court, which held that the appellate court erred by not applying the strict scrutiny standard to the University’s admission policies. The case was remanded, and the appellate court reaffirmed the lower court’s decision by holding that the University of Texas’ use of race as a consideration in the admissions process was sufficiently narrowly tailored to the legitimate interest of promoting educational diversity and therefore satisfied strict scrutiny.

Question

Does the University of Texas’ use of race as a consideration in the admissions process violate the Equal Protection Clause of the Fourteenth Amendment?

Conclusion (4 - 3, there were only eight justices and Justice Kagan did not participate in the discussion or decision of the case)

The University of Texas’ use of race as a consideration in the admissions process did not violate the Equal Protection Clause of the Fourteenth Amendment. Justice Anthony M. Kennedy delivered the opinion for the 4-3 majority. The Court held that the University of Texas’ use of race as a factor in the holistic review used to fill the spots remaining after the Top Ten Percent Plan was narrowly tailored to serve a compelling state interest. Previous precedent had established that educational diversity is a compelling interest as long as it is expressed as a concrete and precise goal that is neither a quota of minority students nor an amorphous idea of diversity. In this case, the Court determined that the University of Texas sufficiently expressed a series of concrete goals along with a reasoned explanation for its decision to pursue these goals along with a thoughtful consideration of why previous attempts to achieve the goals had not been successful. The University of Texas’ plan is also narrowly tailored to serve this compelling interest because there are no other available and workable alternatives for doing so.

Justice Clarence Thomas wrote a dissent in which he argued that the Equal Protection Clause of the Fourteenth Amendment categorically prohibits the use of race as a consideration in a higher education admissions process. In his separate dissent, Justice Samuel A. Alito, Jr. wrote that majority’s decision was too deferential to the University of Texas’ determination that its use of race in the admissions process was narrowly tailored to serve a compelling interest and that the majority failed to properly apply strict scrutiny. Because the Fourteenth Amendment’s Equal Protection Clause was enacted at least in part to prevent the government from treating individuals as merely components of racial class, race-based classifications, regardless of their purpose must be subject to the strictest level of constitutional scrutiny. In this case, the University of Texas’ use of race in its admissions policy cannot withstand strict scrutiny because the University’s interest is not sufficiently clearly defined and therefore judicial review to determine whether the policy is narrowly tailored is impossible. Even if it were, the goal of demographic diversity could only feasibly be achieved using impermissible quotas for racial balancing that are based on stereotypes. Justice Alito also argued that the use of racial preferences is unnecessary to achieve the goal of diversity because the admissions process could use a race-neutral holistic review based on life experiences that would achieve the same effect. Chief Justice John G. Roberts, Jr. and Justice Clarence Thomas joined in the dissent.

Justice Elena Kagan did not participate in the discussion or decision of the case. (oyez)

[JoeFromtheBronx]

Steve Vladeck on Monday provided some more trivia:

Although my favorite Peckham [author of Lochner v. N.Y.] claim to fame is that he’s the only person ever confirmed to the Supreme Court after the President’s nomination of his brother (Wheeler Hazard Peckham) was defeated, the relevant trivia is what happened on December 9, 1895: That was the last day on which a Senate controlled by Republicans voted to confirm a Democratic president’s nominee to the Supreme Court. (Justice Thomas is the most recent example in the other direction.) One can only wonder when (if?) we’ll next see a cross-party Supreme Court confirmation.

[Brett Bellmore]

"That was the last day on which a Senate controlled by Republicans voted to confirm a Democratic president’s nominee to the Supreme Court."

To be fair, from 1895 to today, there have only been 14 years where you had a Democratic President and a Republican Senate, so, not a lot of opportunities for that. 24 with the reverse situation, and 96 where the Senate was controlled by the same party as the President.

[JoeFromtheBronx]

The Fall of Affirmative Action: Race, the Supreme Court, and the Future of Higher Education by Justin Driver is a good read.

He earlier wrote a more comprehensive book regarding court cases involving education. Driver argues that the more recent SCOTUS affirmative action decision is counterproductive, even using some of the arguments of AA opponents.

[SMP0328]

Fisher II appears to be effectively overruled by SFFA v. Harvard. I don't see how the decisions can be compatible with each other.