What should the Supreme Court do with this appeal? First, it is time for the justices to insist that public colleges and universities produce convincing evidence that a diverse student body produces enough clear, compelling, benefits to justify race-conscious admissions. The court should retreat from its policy of “deferring” to universities on this issue. Secondly, if there are workable, narrowly-tailored, race-neutral admissions policies that produce a diverse student body, the court should demand that these policies be used without exception.

Abigail Fisher applied for admission to the University of Texas at Austin (UT) as part of the entering class of 2008. Little did she know that being rejected for admission under UT’s race-conscious program would bring her before the U.S. Supreme Court, not once, but twice. Fisher v. University of Texas II is scheduled to be heard in the court’s new term. The outcome will shape college and university admissions policies nationwide.

The issue of whether public colleges and universities can use race as an affirmative characteristic in admissions was first addressed by the Supreme Court in Regents of the University of California v. Bakke. There, an applicant to medical school was rejected in favor of students with less meritorious qualifications under a quota-type system that reserved seats for minority students. In a fractured and ambiguous decision, four justices, with Justice Lewis F. Powell making the fifth justice, first nixed that quota-like approach. However, four other justices, with Powell making the fifth once again, recognized that if an educational institution were trying to create a “diverse student body” to enhance students’ educational experiences, then race could be considered a positive “factor” in admission decisions.

In an effort to clarify the admissions muddle left by Bakke, and “after a series of conflicting lower court rulings were issued regarding the use of race to promote a diverse student body,” the court (in 2003) heard and decided two University of Michigan cases—one concerning the College of Literature, Sciences, and the Arts (LSA) and the other concerning the Law School. In the LSA case, the court rejected the use of race in a way that would virtually guarantee admissions, but in the Law School case it approved a complicated, largely inscrutable process of admissions which allowed Michigan to admit a “critical mass” of minority students so the individual minority students would not feel “isolated or as a spokesperson for their race.” What was allowable was still far from clear.

The lack of clarity caused the UT admissions policies to change several times over two decades. UT first used race and then abandoned race when it lost in court. At that point the Texas legislature passed the so-called “Top 10 percent Law,” which granted in-state students, regardless of race, automatic admission to public universities if they finished in the top 10 percent of their Texas high school class. In its most recent admissions policy shift, UT continued to abide by that race-neutral law but supplemented it by using race in what it called a “holistic review” of applicants.

It was this approach, using race once again, which was challenged by Abigail Fisher. In what became Fisher v. University of Texas I, she lost in the lower federal courts, but upon appeal to the Supreme Court in 2013 the justices said that the Fifth Circuit had erred. It did not give the UT admissions process the proper level of “strict scrutiny” required whenever persons are treated differently because of race. Upon remand and after further review, the Fifth Circuit Court of Appeals once again found the current race-conscious admissions approach constitutionally acceptable. Fisher appealed a second time and the Supreme Court agreed to hear her appeal once again; this became Fisher v. University of Texas II.

The technical legal question now is whether or not the Fifth Circuit’s “redo” strictly scrutinized UT’s latest race-conscious admissions program. What exactly is “strict scrutiny?” This is a court’s way of saying that since using racial categories may very well subject persons involved to unfair treatment, their use can only be countenanced if the reasons for using such a classification are “compelling.” In previous cases the court has “deferred” to the university’s goal of admitting a “diverse student body” as a valid and compelling one. Therefore, unfortunately, the court is not likely to revisit that issue, although it should.

However, in addition, a second legal hurdle must be cleared by UT. The specific means used to create a diverse student body must be “narrowly tailored” to use the words of the court. “Narrow tailoring” means that the “reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.”

On this issue, UT is in trouble. The Top 10 percent Law, which remains the law in Texas, has resulted in a substantial percentage of minorities (African American and Hispanic) being admitted to UT. That law is exactly the kind of race-neutral alternative that constitutes “narrow tailoring” because it produces diversity and its benefits but without the need to use racial preferences. In a bizarre twist, UT apparently convinced the Fifth Circuit that its “holistic” admissions process (which uses race as a component), is, nevertheless, still necessary to achieve diversity.

Why? Amazingly, UT says it is because the minority students admitted under the top 10 percent law do not create the “quality” of diversity that UT desires. In a string of largely unsubstantiated propositions, UT appears to be arguing that students who are admitted via the Top 10 Percent Law come largely from schools where racial minorities predominate and, therefore, contribute only one type of diversity. UT believes that minority students who have been successful in predominately white schools, but have not made the 10 percent cut, contribute another kind of diversity. The holistic policy, it argues, allows members of this latter group to be admitted.

What should the Supreme Court do with this appeal? First, it is time for the justices to insist that public colleges and universities produce convincing evidence that a diverse student body produces enough clear, compelling, benefits to justify race-conscious admissions. The court should retreat from its policy of “deferring” to universities on this issue. Secondly, if there are workable, narrowly-tailored, race-neutral admissions policies that produce a diverse student body, the court should demand that these policies be used without exception. The court should remind public colleges and universities of what Justice Clarence Thomas warns: “The Constitution abhors classifications based on race … [because] every time the government places citizens on a racial register and makes race relevant to the provision of burdens and benefits, it demeans us all.”

Dr. John A. Sparks is the retired Dean of Arts & Letters, Grove City College, Grove City, PA. He is a Fellow in the College’s Center for Vision & Values, a member of the State Bar of Pennsylvania and a frequent contributor on U.S. Supreme Court developments. Used with permission.

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