The U.S. Supreme Court didn’t reject the University of Texas’ race-conscious admissions plan outright, as many had expected. However, justices voted 7 to 1 to send the Fisher ase back to a lower court for “strict scrutiny” of whether the plan is justified.
“A university must make a showing that its plan is narrowly tailored to achieve the only interest that this Court has approved in this context: the benefits of a student body diversity that ‘encompasses a . . . broad array of qualifications and characteristics of which racial or ethnic origin is but a single though important element,’ ” wrote Justice Anthony M. Kennedy.
In 2003, a divided court in Grutter v. Bollinger approved a limited use of race by the University of Michigan Law School to achieve a “critical mass” of diversity, notes the Washington Post.
The University of Texas at Austin . . . admits about 75 percent of its freshmen based on their graduation rankings from Texas high schools. Since many of the state’s high schools are dominated by one race or ethnicity, this has created a diverse applicant pool.
For the remaining slots, it uses a “holistic” evaluation of applicants that includes race as one of many factors.
The case is named for Abigail Fisher, a white student who didn’t qualify for automatic admission. She argued “the attempts to boost the number of African American and Hispanic students cost her a spot in the freshman class of 2008.” She went instead to Louisiana State University (no doubt paying higher out-of-state tuition) and earned a bachelor’s degree.
Strict scrutiny just got a lot stricter, writes Kirk Kolbo, who argued against UM’s race-conscious affirmative action plan in Grutter, on Powerline.
. . . the Court’s opinion in Fisher goes into painstaking detail (more than five pages are devoted to the issue) about how the Fifth Circuit should go about applying strict scrutiny after the remand.
. . . Strict scrutiny requires both a “compelling interest” justifying the use of race as a factor in decision-making, and means of implementing that interest that are “narrowly tailored” to achieving it.
. . . Fisher states that a university “receives no deference” on the question of whether the “means chosen . . . to attain diversity are narrowly tailored to that goal.”
. . . Perhaps the strongest point in Fisher is the statement that “[t]he reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.” (emphasis added).
It will be much harder for racial preferences to pass muster, Kolbo predicts.