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News and Analysis on SCOTUS’s Ruling in Fisher v University of Texas

EWA will host a Google Hangout with Inside Higher Ed’s Scott Jaschik about the decision today at 2:30 p.m.

The U.S. Supreme Court ruled today 7-1 that a lawsuit challenging the race-based admissions policy at The University of Texas at Austin needs to be reviewed a second time by a lower court, a decision that confounded many journalists and legal analysts who have been following the case.

The ruling was a mixed bag, on the one hand affirming the government’s interest in preserving diversity while on the other putting the burden of proof on universities to demonstrate race-based admissions policies are vital to their diversity goals. The high court faulted the lower Fifth Circuit court for not challenging University of Texas to prove it needed an admissions policy that used race as a factor.

The case will now go back to the Fifth Circuit, and possibly a lower court, forging a path that could land it for a second review by the Supreme Court in the not too distant future.

Justice Elena Kagan recused herself from the case, reportedly due to her previous role as Solicitor General for the Obama administration. In 2010, the Justice Department sided with the University of Texas in an official document known as an amicus brief that was presented to the Fifth Circuit court.

Below are clips from various news outlets covering the court’s ruling, what stakeholders and higher-ed watchers think the ruling signifies, and other takeaways.

News Reports

Inside Higher Ed: “The Supreme Court did not — as some thought it might — reverse past decisions that allowed colleges to consider race. In fact, the conclusion of the decision states that colleges must meet the requirements previously given by the court to justify the use of race. Quoting from the landmark 1978 Bakke decision, today’s ruling says: “In order for judicial review to be meaningful, 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 … broa[d] array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.’”

New York Times: “That requirement could endanger the Texas program when it is reconsidered by the federal appeals court in New Orleans. The Texas program admits most students under race-neutral criteria, accepting all students in the state who graduate near the top of their high school classes. But the university also uses a race-conscious system as a supplement.”

Wall Street Journal: “Justice Kennedy said the Supreme Court wants the lower court to hear the case again “so that the admissions process can be considered and judged under a correct analysis.”

Chicago Tribune: “ When the case returns to the 5th U.S. Circuit Court of Appeals in New Orleans, the university ‘must make a showing that its plan is narrowly tailored to achieve the only interest that this court has approved in this context,’ Kennedy wrote.

“Under court precedent, that means a program that takes into account a broad array of qualifications and characteristics ‘of which racial or ethnic origin is but a single though important element.’”

The Huffington Post: “Justice Ruth Bader Ginsburg, the lone justice dissenting from Monday’s decision, maintained that the appeals court faithfully applied Grutter. “I would not return this case for a second look,” she wrote, because “the University reached the reasonable, good-faith judgment that supposedly race-neutral initiatives were insufficient to achieve, in appropriate measure, the educational benefits of student body diversity.”

USA Today: “ Justice Clarence Thomas, the court’s only African-American judge, wrote a separate opinion saying that he was prepared to go further and declare that ‘use of race in higher education admissions decisions is categorically prohibited’ by the Equal Protection Clause.”

EdMedia Commons: “In a brief filed by UT Austin, the school notes Fisher had a cumulative GPA of 3.59 and an SAT score of 1180 out 1600, figures not deemed sufficiently competitive. Nor was she accepted into the summer program that granted some students admission into the university. Five black and Hispanic applicants with lower academic ratings were admitted, as were 42 white applicants with lower scores than Fisher. Among the black and Hispanic applicants with higher academic scores than Fisher, 168 were not admitted. In 2008, the average SAT score for incoming UT Austin students who finished in the top decile of their class was 1219; for other students it was 1285.”

Opinion:

Slate: “The new affirmative action, based primarily on economic disadvantage, better addresses the glaring inequities students face. As you can see from the chart below, a low-income student scores on average 399 points lower on the SAT than a wealthy student. By contrast, the average SAT difference between African-American and white students of the same socioeconomic status is only 56 points. In other words, the SAT class gap is seven times as large as the SAT race gap.”

Inside Higher Ed: “But Edward Blum, director of the Project on Fair Representation, which provided legal counsel to Fisher in the case, predicted that today’s ruling set the stage for the appeals court to reject the Texas policies. ‘This decision begins the restoration of the original colorblind principles to our nation’s civil rights laws,’ said his statement. ‘The Supreme Court has established exceptionally high hurdles for the University of Texas and other universities and colleges to overcome if they intend to continue using race preferences in their admissions policies. It is unlikely that most institutions will be able to overcome these hurdles. This opinion will compel the Fifth Circuit to strike down UT’s current use of race and ethnicity.’”

Associated Press: “Civil rights activist Al Sharpton said the court ‘ducked’ the big issues in the case. While he would have preferred that the justices affirm the use of race in college admissions, ‘a duck is better than a no, but not as good as a yes,’ Sharpton said.”

Bloomberg: “Justice Ruth Bader Ginsburg, today’s lone dissenter, pointed out that even the 10-percent plan isn’t really racially neutral, because it was designed precisely to achieve racial diversity. This question Kennedy left unanswered. And given that the 10-percent plan hasn’t successfully produced enough diversity to satisfy the state, who gets to decide how much diversity is enough? Kennedy held that it is up to the state to say that diversity is valuable. Does this imply that it is up to the state to say how much diversity is needed? That question, too, remains to be answered.”

USA Today: “Giving a break to economically disadvantaged students also can indirectly promote racial diversity, which makes colleges better for everyone. In an analysis of 10 leading universities that dropped race in admissions, my colleague Halley Potter and I found that seven were able to preserve as much racial and ethnic diversity using such programs as class-based affirmative action, given the fact that black and Latino students are disproportionately disadvantaged by economic status.”

The Chronicle of Higher Education: “A goal of colleges should be to enable people from all races and backgrounds to enter, succeed, thrive, and become productive citizens and leaders. But this goal cannot be achieved without taking race into account because of its enduring importance. Full participation can only be achieved by explicitly addressing race as part of a broader inquiry about who does and does not fully participate, why, and what should be done about it.”

Statement from ACE President Molly Broad: “It will take time to analyze the U.S. Supreme Court’s ruling in Fisher v. University of Texas at Austin and its impact on the consideration of race and ethnicity as one factor among many in the admissions process. However, we are deeply gratified that the court agrees with the higher education community–diversity on our campuses offers unique educational benefits to students and is a compelling government interest.”

The Huffington Post: “Debra Humphreys, a spokesperson for the American Association of Colleges and Universities, says other universities will likely take this window of time to shore up the legal defense of their policies. ‘Most colleges will look at the decision and see it as a continuing window of opportunity to re-examine one more time that their policies are in fact adequate enough in terms of meeting the court’s standard of ’strict scrutiny,’ she said. ‘The standard hasn’t changed, but the question is whether universities have built their own evidentiary bases for justifying their policies.’”

The California Model

Los Angeles Times: “With the Supreme Court handing down a tentative decision on affirmative action Monday, many colleges nationwide may look to California, where voters banned racial preferences in 1996.”

San Jose Mercury News: “Janelle Scott went to UC Berkeley as an undergraduate in the early 1990s. When she returned as a professor in 2008, she saw the effect of a decade-old ban on racial preferences — in the faces of the students. The thriving black student scene of her college days was gone.
“‘It does feel like a different campus,’ she said.”
“As colleges across the nation nervously wait to see if the Supreme Court will outlaw affirmative action, some look at what happened in California, where voters banned the consideration of race in public university admissions and financial aid”

Capital Public Radio: “But UCLA Constitutional Law Professor Adam Winkler says California universities still find a way to promote diversity.  ‘What we do is we have, for instance, a percentage plan policy at the University of California, where we take the top students at public schools from all over the country and give them automatic admission to the UC system.’”

NPR: After California banned race-based admissions in 1996, the number of Black and Hispanic students plummeted. “UCLA realized there was a problem, so it decided to start something called “holistic review” taking into consideration a wide range of factors in its admissions decisions — from GPA, to family income, to whether an applicant was the first in the family to go to college. Race was not one of the factors, but indeed, the percentages of black and Latino students began to rebound.

“Then things got complicated again.

“Last year, a UCLA professor released a study claiming the school was letting some black and Latino students in at higher rates than white or Asian students who should have ranked just the same under the new holistic review.”



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