Last Thursday the United States Supreme Court announced its second decision in Fisher v. Texas. The Court originally heard Fisher back in 2013, and at that time remanded the case back to the Fifth Circuit Court of Appeals, then agreed to rehear the case during this term. Fisher challenged the constitutionality of an affirmative action program used by the University of Texas at Austin to supplement the diversity produced by Texas’s state law requiring use of class rank to fill 75% of the slots in the freshman class. 


Last week the Supreme Court sided with Texas on a 4-3 vote. (There is a vacancy on the Court due to the death earlier this year of Justice Antonin Scalia, and Justice Elena Kagan, who was U.S. Solicitor General when Fisher was originally before the Fifth Circuit, recused herself.) Justice Anthony Kennedy, who had never before voted to support the use of affirmative action, wrote the majority opinion, with Justice Samuel Alito issuing a strong dissent.


So what does this mean?  We can speculate, but should also recognize that it is probably easier to predict the long-term consequences of the Brexit vote taken the same day.


The Supreme Court decision will please no one, which makes it either brilliant or flawed.  The Fisher decision preserves the consideration of race in college admission but does not settle the constitutionality of affirmative action.  Those who expected the Court to outlaw racial preferences in college admission once and for all are both shocked and disappointed, and yet the decision hardly qualifies as a ringing endorsement of affirmative action.


Just as the first Fisher decision talked about the need for affirmative action programs to be “narrowly tailored,” the most recent decision is itself narrowly tailored, addressing the specific facts of the case rather than resolving the larger issues of philosophy and public policy.    


BURDEN OF PROOF—The key point of disagreement between Justice Kennedy’s majority opinion and Justice Alito’s dissent is which party should have the burden of proof.  The essence of Kennedy’s argument is that Fisher and her lawyers have not proved that she was damaged by the existence of the affirmative action program (though there is also a strong hint that the Court is tired of dealing with this case).  Alito, on the other hand, argues that the decision three years ago to remand the case back to the Fifth Circuit was a warning shot to Texas to produce evidence proving the need for the affirmative action program, evidence it hasn’t provided, and that the majority opinion lets the university off the hook.


GOOD FAITH—The last ECA post talked about “Good Faith” as an ethical standard or principle, and the majority opinion talks about good faith multiple times, arguing that UT-Austin’s attempts to increase diversity in the aftermath of previous Supreme Court affirmative action cases, including the current program, constitute a good faith effort to meet the constitutional requirements of those cases.


JUDICIAL DEFERENCE—Fisher 2 breaks with Fisher 1 with regard to how much deference the courts should give colleges and universities to determine the composition of their student bodies and how admission decisions are made.  The first decision suggested that colleges should have to show that their programs meet the legal definition of “strict scrutiny,” and Alito argues that the present decision gives too much deference.


IMPACT OF THE TEXAS TOP 10% LAW—Fisher v. Texas differs from previous affirmative action cases in that the University of Texas system already had in place a race-neutral option for producing diversity due to the state law passed in the late 1990’s that guarantees students who finish in the top 10% of their high school class admission to UT.  That plan continues to fill 75% of the freshman class at UT-Austin (although it is now in essence a top 7-8% plan), and it has produced a reasonable amount of socioeconomic and ethnic diversity.  The Top 10% Law is not at issue in Fisher v. Texas, but rather the affirmative action program designed to increase the diversity of the class through the remaining 25% of places in the freshman class.  As a challenge to affirmative action, that makes it either ideal or awful. 


During oral arguments Texas argued that the Top 10% law didn’t produce enough or the right kind of diversity, at one point seeming to contend that diversity requires admitting students of color from upper and middle class backgrounds with lower class ranks to counter the stereotype that all students of color are bright and poor.  On the other hand, the majority opinion concludes that Fisher’s failure to gain admission to UT-Austin was influenced far more by the fact that she was not in the Top 10% of her high school class (and thus not eligible for 75% of the spaces in the UT freshman class) than the affirmative action program. 


PLUS FACTOR—At one point the majority opinion refers to race as a “plus factor,” and that phrase caught my eye.  Back in the mid 2000’s I was interviewed by a writer for U.S. News and World Report’s “America’s Best Colleges” who informed me that I was the originator of the term “plus factor.”  I’m not sure that is actually the case, but if so, you’re welcome, Justice Kennedy.



So where does that leave us?  Fisher allows colleges to take race into consideration in admission for the foreseeable future as, to quote Justice Kennedy, a “factor of a factor of a factor,” and that’s a good thing.  My friends on the college side were relieved and overjoyed by the decision, arguing that ending race-conscious admission would hurt their ability to make progress on the diversity front, and I take that seriously.  I’m sensing that the Supreme Court majority, and Justice Kennedy in particular, concluded that Fisher was not the right vehicle to end affirmative action in college admission at this time.  It may not be the end of affirmative action, but it’s also probably not the end of legal challenges to affirmative action.


The ethical issues may be even more complex than the legal issues.  I find myself in the uncomfortable position of seeming to agree (probably the first time ever) with Justice Clarence Thomas, who in a one-page dissent argued that racial distinctions of any kind are prohibited by the Constitution.  That is true in a perfect world, but we don’t live in a perfect world.  The ends promoted by the use of affirmative action are worthy and laudable, but the larger ethical question is whether those ends justify the means used to achieve them.


It is those means that deserve deeper discussion, not just with regard to race but also with regard to admission in general.  The use of holistic admission was discussed both in the Fisher case and also in the complaints filed with the Department of Education on behalf of Asian-American applicants to several Ivy League institutions.  In the Fisher opinion Justice Kennedy points out that using a single metric for admission, such as class rank, is a “blunt instrument” that can’t produce meaningful diversity.  It also doesn’t produce nuanced admission decisions.  Holistic admission allows a college to take into account multiple factors that might be relevant, but it can also function as a shroud preventing transparency and allowing different applicants to be admitted for different reasons.


Related to holistic admission are two other practices that deserve closer scrutiny.  One is the use of preferences of any kind.  There are plenty of students and parent who find affirmative action objectionable but think nothing of asking a family friend with influence to intervene on their behalf.  To what extent are admission preferences for athletes, legacies, and those who apply early defensible educationally?


The other issue is the use of college admission as a form of social engineering.  It can be argued that any approach to admitting a class constitutes a form of social engineering, but I have never felt comfortable with the idea that admissions committees should start with a desired end result and then reverse engineer the admission process to produce a class full of differences.  I’m not saying that I wouldn’t practice that were I running a selective admission process, but I find it hard to defend from the perspective of fairness and equity for each individual applicant. It is college admission as social engineering that is ultimately on trial in cases like Fisher.


Thus endeth the sermon.  And thus endeth another year of Ethical College Admissions (the blog).  ECA is going to go on summer break to relax, refresh, and reflect, although we reserve the right to post if some issue raises its head that won’t wait for the end of August.  Thanks to all of you who take the time to read the blog and share your support by e-mail or in person.  It means more than you can know.


Finally, in the shameless self-promotion department, the last post was selected by Inside Higher Ed as an “Around the Web” selection, the 19th time this blog has been mentioned.