Supreme Court Sends Affirmative Action Case Back to Lower Court

By Kisha Bird

Earlier this week, the U.S. Supreme Court issued its much-awaited decision on the Fisher v. University of Texas at Austin  (UT) case.  This challenge was brought by a white student, Fisher, who claims she was denied admission to UT due to an admissions policy that considers race.  For months, advocates of racial justice and supporters of affirmative action anxiously waited for this decision as it would have major implications for racial preferences in admissions to public colleges and universities, as well as for the broader legacy of affirmative action. 

In a seven to one decision, the Court neither rejected nor endorsed the race-based admissions policy at UT and sent the case back to a lower court, citing that not enough scrutiny had been given to the University of Texas’ admissions program. With this ruling, the Court upholds previous decisions-including Grutter v. Bollinger-which affirmed the University of Michigan Law School’s affirmative action program and held that diversity is a compelling interest for public universities and that race can be used as a factor in admissions.

The Constitutional Law Scholars, in a joint statement, notes that the Court’s Fisher decision ultimately determined that “admissions programs that consider race as one of many factors in the context of an individualized consideration of all applicants can clearly pass constitutional review” and that the decision “makes clear that promoting diversity in higher education can justify race-conscious admissions policies when they are carefully designed and consider race only as part of a flexible and individualized review of all applicants.” In sending the case back to the lower court, the Supreme Court further clarified how courts must determine if an admission policy passes muster. In a statement issued earlier this week, UT President Bill Powers called the decision encouraging.  Vowing to continue to defend the University’s admission policy, he expressed confidence that it would satisfy the strict standards prescribed by the court.

Last summer, CLASP joined the Kirwan Institute and a national coalition of black male achievement initiatives (BMI)  in urging the Supreme Court to uphold the admissions procedures of the University of Texas.  In the BMI amicus brief, we advocated for the Court to examine the low numbers of African American males currently enrolled at select universities, citing that studies of college diversity seldom consider information about both race and gender.  Black males are “especially vulnerable to exclusion from postsecondary educational opportunities without every available constitutional tool to include them.”  It is important to improve post-secondary and college attainment for all African-Americans, but great gender disparities exist.  Among U.S. residents, Black females are far more likely to have earned a post-secondary degree-accounting for 68 percent of associate’s degrees, 66 percent of bachelor’s degrees, 71 percent of master’s degrees, and 65 percent of all doctor’s degrees awarded to Black students.

Holistic race-conscious admission policies help in allowing young black males to gain access to selective colleges and universities and are a critical tool in helping colleges and universities identify student talent and population groups that have been traditionally excluded from opportunities for higher education advancement.   CLASP is encouraged by this ruling and is hopeful that the American university community maintains a commitment to affirmative action policies and ensuring diversity.