The Supreme Court’s recent ruling that upheld the University of Texas at Austin’s race-conscious admissions program sends a strong signal that pending lawsuits in the lower courts against other elite universities are less likely to be struck down.
In Fisher v. Texas, Abigail Fisher, a white woman, alleged that she was rejected from Texas’s flagship public university in 2008 because of her race. (Justice Elena Kagan recused herself from the decision). The Project on Fair Representation, an Austin-based nonprofit legal defense fund that represented Fisher, argued that the Supreme Court’s 4–3 decision weakens the country’s civil-rights laws. “As long as universities like the University of Texas continue to treat applicants differently by race and ethnicity, the social fabric that holds us together as a nation will be weakened,” Edward Blum, the project director, said in a statement. “[The] decision is a sad step backward for the original, colorblind principles to our civil rights laws.”
The legal defense fund has filed lawsuits on behalf of the organization Students for Fair Admissions against Harvard University and the University of North Carolina, alleging that their affirmative-action admissions policies use racial preferences in ways that are contrary to previous Supreme Court decisions. Established in 2014, the student organization is an Arlington, Virginia, nonprofit group that boasts 20,000 parents and students (including people who have been denied admission to Harvard and UNC) who believe that affirmative action is “unfair, unnecessary, and unconstitutional.”
The Project on Fair Representation believes that UNC should adopt race-neutral policies instead. The University of North Carolina lawsuit alleges that the public university’s use of race as a factor in admissions does not meet “strict scrutiny,” that is, the university has not proved that it needs to use race-based admissions to achieve diversity on campus.
UNC enrolled 4,076 undergraduate students in the fall of 2015. Asian American students made up 15 percent of those admitted, followed by African American students at 9 percent, Latino students at 7 percent, and Native American students at 2 percent. Whites make up 71 percent of admitted students.
The lawsuit against Harvard’s admission policies focuses exclusively on Asian American students, alleging that the Ivy League university specifically limits the number of Asian American students admitted and engages in “racial balancing,” or capping the number of students admitted regardless of annual shifts in the number of applications or the qualifications of the applicants.
Of the 2,080 students admitted to Harvard last fall, 11.6 percent are African American, 21.1 percent are Asian American, 13 percent are Latino, and less than 2 percent are Native American or Pacific Islander.
Affirmative action opponents now face an uphill battle. “It’s hard to see a court ruling against UNC or Harvard after Fisher,” says Vinay Harpalani, a Savannah Law School professor. “If anything, [it] would make them more likely to be dismissed,” he says.
While the Project on Fair Representation’s quest to end affirmative action at American colleges and universities has lost ground, there is merit to the argument that Asian Americans face discrimination in the college admission process. According to recent studies, elite schools look for higher SAT scores from students who identify as Asian than they do from white, African American, or Latino students. But Harpalani thinks that the affirmative action opponents are using the issue for their own cause. “The lawsuits conflates those issues because they want to get rid of affirmative action,” he says.
Writing for the majority, Justice Anthony Kennedy argued that the case did not violate the Equal Protection Clause of the 14th amendment, which prescribes that states must apply the law equally and may not discriminate against individual groups.
The University of Texas at Austin turned to race-based admissions to increase diversity after studies showed low numbers of students of color in the classroom. Surveys also found that nonwhite students experienced feelings of loneliness and isolation on campus. UT Austin’s need to use race in its admissions process “sets a model for other universities” that have their affirmative action policies challenged, explains Harpalani.
In his dissent, Justice Samuel Alito touched on the controversies involving Asian American students, noting that UT Austin actually discriminates against Asian American students because the university’s classroom studies do not mention that there are few Asian Americans at the school. UT Austin acts “almost as if Asian American students don’t exist,” Alito said. Justice Clarence Thomas joined Alito’s dissent. (Justice Kennedy wrote that those claims were unfounded.)
The Fisher victory comes with a caveat. The admissions criteria that UT Austin uses is very narrow. The university admits 80 percent of freshman classes through the race-neutral “Top Ten Percent” plan: Any Texas student who graduates in the top 10 percent of his or her class gains automatic admission. Race is a factor for the remaining 20 percent.
But it is a win victory that affirmative action supporters will take. Affirmative action last survived a high court challenge in Grutter v. Bollinger (2003), when the Supreme Court upheld the University of Michigan Law School’s race-based admission policies. “It’s the best day for affirmative action activists in 13 years,” says Harpalani.