Disappointing decision in Fisher v. University of Texas at Austin

In a 4-3 decision, the Supreme Court ruled that the University of Texas’s use of race in its admissions process does not violate the Constitution. Justice Kennedy wrote the Court’s opinion. The decision is what you’d expect from an opinion upholding the university’s race-based admissions plan — deferential and uncritical.

The Court grants the university wide latitude in how its undergraduate class is shaped. It writes, that “[c]onsiderable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission.”  Contrast that statement with the opinion in Fisher I, that “[t]he University must prove that the means chosen by the University to attain diversity are narrowly tailored to that goal. On this point, the University receives no deference.”

The Court’s decision is only explainable from a position of extreme deference. For example, the Court responds to the argument that the university’s plan should be rejected because it has little impact on the racial makeup of the university.  The Court writes that:

“In 2003, 11 percent of the Texas residents enrolled through holistic review were Hispanic and 3.5 percent were African-American. In 2007, by contrast, 16.9 percent of the Texas holistic-review freshmen were Hispanic and 6.8 percent were African-American.Those increases—of 54 percent and 94 percent, respectively—show that consideration of race has had a meaningful, if still limited, effect on the diversity of the University’s freshman class.”

But even someone as bad at statistics as me can see through such nonsense.  If the University had 2 black students in 2007, and then 4 in 2013, that would be a 100% increase.  But increasing black enrollment by two students, could hardly be said to be difference making at a university with tens of thousands of students.  The opinion is chock-full of such sleights of hand.

Where Fisher I contains good language concerning the vigorous scrutiny that courts should undertake when reviewing race-conscious decisions by the government, Fisher II rejects vigorous scrutiny.  For example, three years ago the Court held that narrow tailoring requires “careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications.”  But today the Court reverses and places the burden on Ms. Fisher.  It writes that “petitioner cannot assert simply that increasing the University’s reliance on a percentage plan would make its admissions policy more race neutral.”

That’s it. Seven years and seven PLF briefs later, we’re no better off than when we started. There’s no sugar-coating this decision. It’s a blow to equality under the law. It tacitly accepts the “classroom diversity” justification that even the University was too embarrassed to defend. It countenances the subjective “holistic review” process employed by universities nationwide. It makes strict scrutiny less strict. It legitimizes racial discrimination.