Focus on the Court: The Great Equalizer Under Attack



Abigail Fisher is set to graduate from Louisiana State University come spring, but she has been embattled in litigation since 2008 when she was denied admission to the University of Texas.  Yesterday, the United States Supreme Court granted a petition of certiorari in her case, Fisher v. University of Texas at Austin, which challenges an affirmative action program at the University of Texas.  The Court—minus Associate Justice Elena Kagan, who has recused herself since she was involved in the case while serving as President Obama’s solicitor general—is expected to hear oral argument in the next term, which will begin in October of this year.  In the 50 or so years since affirmative action programs were created to ensure women and minorities a level playing field in education and employment opportunities, federal courts have toggled back and forth between support and opposition to such programs. 

In the previous decade and a half, higher education affirmative action programs have remained in the spotlight. In 1996, the Fifth Circuit Court of Appeals held in Hopwood v. Texas that the use of race may not be a determining factor in admissions procedures. Following the Hopwood ruling, Texas discontinued its race-conscious admissions procedures.  But seven years later, the Supreme Court nullified the Hopwood decision when it held in Grutter v. Bollinger that certain types of race-conscious admission programs aimed at achieving a more diverse student body were constitutionally acceptable—soon after, Texas implemented a new affirmative action program that is now being challenged in the Supreme Court.

When Ms. Fisher applied to the University of Texas, the school was operating on the two-tiered admissions system that had been implemented after the Grutter decision: In-state applicants who graduated in the top 10 percent of their high school class were automatically admitted, and the remaining application pool was evaluated with a “holistic” approach that  considered not only test scores, leadership activities, and community service, but race as well.  Ms. Fisher had just missed the 10 percent cut-off and was placed in a large pool of applicants vying for just 20 percent of all admission slots.  Ms. Fisher claims that her application was rejected in the second tier of admissions because she is white.

At stake is whether Ms. Fisher even has the standing to sue the University of Texas over her rejection (considering she now attends Louisiana State University) and, more broadly, the fate of higher education affirmative action programs that ensure a level playing field for all.

The current composition of the Court is not particularly friendly to affirmative action—Chief Justice Roberts and Associate Justices Alito, Thomas and Scalia all opposed affirmative action programs in past decisions. Meanwhile, Associate Justice Kennedy has never voted in favor of upholding an affirmative action program, but he has acknowledged diversity as a legitimate goal of admissions programs, suggesting that some affirmative action programs might be permissible if they involve “race-neutral alternatives.”  The Reform Movement has long viewed affirmative action programs as the backbone of the civil rights movement and as a great equalizer for women and minorities.  The RAC will continue to monitor the progress of this case as it nears oral argument in the fall.

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Molly Benoit

About Molly Benoit

Molly Benoit is the RAC Legislative Associate and was a 2011-2012 Eisendrath Legislative Assistant. She is from Palm City, FL, and a member of Temple Beit HaYam.

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