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Harvard’s Stake in the Fisher v. Texas Affirmative Action Case

6.23.16

Photograph by Gary Blakeley/123RF Stock Images


Photograph by Gary Blakeley/123RF Stock Images

Relieving fears at Harvard and elsewhere that it might strike down the use of race in admissions, the U.S. Supreme Court today upheld the University of Texas (UT) at Austin’s affirmative action program in the case Fisher v. University of Texas at Austin. Justice Anthony Kennedy, LL.B. ’61, who had never before voted to uphold an affirmative action policy, provided the swing vote in the 4-3 decision.

Harvard had filed a friend-of-the-court brief in the case last November, urging the Court to uphold what it called a “compelling, indeed vital educational interest.” “It is more apparent now than ever,” the brief argued, “that maintaining a diverse student body is essential to Harvard’s goals of providing its students with the most robust educational experience possible on campus and preparing its graduates to thrive in a complex and stunningly diverse nation and world.” Though Fisher concerned the admissions policies at a public university, the Supreme Court’s decisions on policies in higher education can affect private institutions like Harvard because Title VI of the Civil Rights Act of 1964 bans institutions that receive federal funding from engaging in racial discrimination. The decision also comes during a moment of public scrutiny of Harvard’s affirmative action practices, including a lawsuit alleging that the University discriminates against Asian Americans in admissions.  

“At Harvard, we strive to foster a diverse campus community that prepares our students to thrive as citizens and as leaders in an increasingly connected world and global economy,” said University president Drew Faust. “We are pleased that today’s Supreme Court’s ruling in Fisher v. the University of Texas has upheld this integral value.”

The case involved a challenge to a race-conscious admissions policy at UT, brought by Abigail Fisher, who argued she had been rejected by the school because she is white. Justice Elena Kagan, J.D. ’86, had recused herself due to prior work on the same case as the United States solicitor general.

UT’s admissions policies automatically grant admission to any students who graduate in the top 10 percent of their high school class, as required by Texas law. The remaining applicants are selected using a combination of academic and personal criteria, including an applicant’s race. The Court’s decision, written by Kennedy, found that Fisher was denied admission not because of the use of race in admissions, but because of the school’s 10-percent rule, which grants spots to roughly 75 percent of each incoming class. For the remaining applicants, the Court continued, “although admissions officers can consider race as a positive feature of a minority student’s application, there is no dispute that race is but a ‘factor of a factor of a factor’ in the holistic-review calculus.”

Asserting that diversity produces educational benefits does not alone justify the constitutionality of a race-conscious policy, the decision argues. But, it continues, “The record here reveals that the University articulated concrete and precise goals—e.g., ending stereotypes, promoting ‘cross-racial understanding,’ preparing students for ‘an increasingly diverse workforce and society,’ and cultivating leaders with ‘legitimacy in the eyes of the citizenry’—that mirror the compelling interest this Court has approved in prior cases.” The argument builds on the logic of earlier cases Regents of the University of California v. Bakke in 1978 and Grutter v. Bollinger in 2003, which struck down racial quotas in admissions but upheld the use of race as part of a holistic process.

The Supreme Court had considered Fisher’s case in 2013, and sent it back to the Fifth Circuit Court of Appeals after finding that the lower court had not applied the strict scrutiny standard in reviewing UT’s admissions policies. Under that standard, colleges can’t merely claim that affirmative action policies serve certain educational interests. They must also prove that the policies are narrowly tailored to meet those interests, and that there’s no race-blind way to do so. In today’s decision, the Supreme Court affirmed that UT’s policy withstands strict scrutiny.

In a dissenting opinion, Justice Samuel Alito argued that UT hadn’t satisfied the strict scrutiny test. “The University has still not identified with any degree of specificity the interests that its use of race and ethnicity is supposed to serve,” he wrote. “Its primary argument is that merely invoking ‘the educational benefits of diversity’ is sufficient and that it need not identify any metric that would allow a court to determine whether its plan is needed to serve, or is actually serving, those interests.” He continues, interestingly, that “UT has also claimed at times that the race-based com­ponent of its plan is needed because the Top Ten Percent Plan admits the wrong kind of African-American and Hispanic students, namely, students from poor families who attend schools in which the student body is predomi­nantly African-American or Hispanic. As UT put it in its brief in Fisher I, the race-based component of its admis­sions plan is needed to admit ‘[t]he African-American or Hispanic child of successful professionals in Dallas.’...the argument turns affirmative action on its head. Affirmative-action programs were created to help disadvantaged students.”

Paul professor of constitutional law Tomiko Brown-Nagin called the decision “a stunning win for the University and a reversal of fortune for affirmative action’s detractors.” Laurence Tribe, Loeb University Professor and professor of constitutional law, commented that

Today’s decision in Fisher v. Texas means that race-conscious affirmative action programs in higher education will be upheld as long as they follow the Court's guidelines for avoiding crude racial quotas and for fine-tuning those programs over time on the basis of intelligently articulated educational philosophies targeting the many dimensions of diversity, as Harvard’s programs of affirmative action have taken great care to do…. What some feared (and others hoped) would be the death knell for affirmative action in colleges and universities has instead become a new lease on life for affirmative action and a blueprint to follow going forward. Quite apart from the way today’s decision will be of help to Harvard in fending off the pending attack on its admissions policies, this is a huge national landmark for racial inclusion, all the more significant because of the bullet the nation dodged, thanks to Justice Kennedy, who had never before found a race-sensitive admissions program that could meet his exacting constitutional standards.

The affirmative action debate came to Harvard this spring, after five candidates, including affirmative action opponent Ron Unz ’83, unsuccessfully ran for the Board of Overseers on a platform they called “Free Harvard, Fair Harvard,” arguing that the University’s admissions policies discriminate against Asian Americans. Three Asian-American applicants sued Harvard in 2014, arguing that the University’s race-conscious admissions policy amounts to an Asian quota (the case is pending in federal court). The narrative has drawn increasing national attention, and may mark a new frontier of challenges to affirmative action. Others have attempted to delink the question of affirmative action from discrimination against Asian Americans. Yascha Mounk, a lecturer on political theory at Harvard, argued in The New York Times that Harvard does impose an Asian quota, but that it should be addressed separately from affirmative action.  

The University has a continuing interest in affirmative action litigation, as a vocal advocate of race-conscious admissions and as the subject of unsparing public scrutiny for its admissions practices. Bakke, the foundational 1978 Supreme Court case that struck down quota-based affirmative action, cited Harvard’s holistic process as a model affirmative action policy. Fisher won’t mark the end of affirmative action that many had feared, but challenges to race-conscious admissions, at Harvard and elsewhere, are sure to continue. 

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