Joshua Civin, counsel to the director of litigation for the NAACP Legal Defense and Educational Fund, argued in court that there are still barriers to education for racial minorities — and that those barriers constitute an inherent disadvantage.
Last November, a three-judge panel of the Fifth Circuit Court of Appeals heard oral arguments in Fisher v. The University of Texas at Austin after the case was remanded by the U.S. Supreme Court in June. In a 7-1 ruling, the nation’s highest court decided that the lower court failed to apply “strict scrutiny” to the university’s admissions process and that race should only be a factor in admissions to aid in diversity only if “available, workable, race-neutral alternatives do not suffice.” The justices sent the case back to the lower court to apply that standard.
It is unclear as to when a ruling is expected, but it could come as early as this month.
The outcome of the case could have far-reaching implications for colleges and universities throughout the country that use a race-conscious admissions process. While Fisher’s name is listed as the plaintiff, at its core, the case examines the inclusion of race in the process of holistic review, which selective colleges and universities use to assess applicants.
Man behind the case
Edward Blum had been searching for someone like Fisher. The founder and sole employee of the Project on Fair Representation, which he founded in 2005, Blum had put up a website looking for White students who thought they had been denied admission to UT because they were White. Fisher’s father, Richard, contacted Blum in 2008 and made his daughter’s case.
Though Fisher had a 3.59 GPA, it was not enough to put her in the top 10 percent at her suburban Houston high school, which, under state law, would have garnered her automatic admission to UT. According to court documents, Fisher’s SAT score of 1180 out of 1600 was above that year’s national average; she was an accomplished cellist, had participated in mathematics competitions and volunteered for Habitat for Humanity. But the spots for students like Fisher were limited — just 841 remained after the top 10 percent-ers claimed theirs.
Fisher’s application was assessed based on a second set of criteria. The “academic index” was based on GPA and SAT; the second set was based on a “personal achievement index.” That index is based on two essays and a personal achievement score, which came down to the consideration of six factors that are equally weighted: leadership potential, extracurricular activities, awards and honors, work experience, community service and “special circumstances.” Race is one of seven factors included under “special circumstances”; others include socioeconomic status or whether the student was raised by a single parent.
The university has repeatedly argued that including race in this second set of admissions criteria is necessary to ensure diversity. Administrators have also argued that earned the maximum personal achievement index score, she still would not have been admitted. Attorneys also argued that Fisher does not have standing in the case because she has already graduated from Louisiana State
University and secured a job at a finance firm. The only harm she could point to was not being able to tap into the UT alumni network and possibly getting a better first job. The only remedy she sought was return of the $100 application fee.
The university offered provisional admission to 47 students with lower admissions scores than Fisher — 42 were White, five were Black or Hispanic.
However, 168 Black or Hispanic students who had admissions scores identical to or higher than Fisher’s were denied provisional admission. But, the narrative around Fisher’s case is that race was the sole reason for her rejection.
Fisher seemed to make a compelling case, tapping into a level of resentment felt by some that Whites were being discriminated against based on the very laws passed to alleviate discrimination against people of color — namely African-Americans.
Blum, who is not an attorney, provided counsel through a Washington, D.C., law firm. In an interview from his home in Maine, the former stockbroker says that he is “committed to restoring the original vision of the civil rights movement,” and that the use of race in college admissions violates the equal protection clause of the 14th Amendment.
“I think the use of race to help an individual or to harm an individual is wrong,” says Blum, who also is the architect of the Shelby County v. Holder case, which dismantled a key provision of the Voting Rights Act of 1965. “Like most Americans, I’m against government classifying people by race and saying we’re going to treat you differently because of your race.”
Still barriers for minorities
Joshua Civin, counsel to the director of litigation for the NAACP Legal Defense and Educational Fund, argued in court that there are still barriers to education for racial minorities — and that those barriers constitute an inherent disadvantage. Civin argued on behalf of the undergraduate Black Student Alliance at UT and Black Ex-Students of Texas, an alumni group.
During oral arguments, the panel questioned the university about the concept of a “critical mass” of students from minority groups, an idea first outlined during the 2003 Grutter v. Bollinger case, which upheld the use of a race-conscious admissions policy.
Dr. Juan Gilbert, IDEaS professor and chair of the division of Human-Centered Computing at Clemson University in South Carolina, says the stakes are extremely high for this case and that the critical mass question must be answered.
“It appears that the court is asking for clarity on how to determine diversity goals,” says Gilbert, who developed Applications Quest, a software system designed to help colleges and universities enroll diverse classes of students without formal preferences. “What’s an acceptable level of diversity?”
Blum says attorneys for Fisher argued that even without the consideration of race, UT would enroll a diverse student body, primarily based on the Top Ten Percent rule. But Civin and lawyers for UT have countered that the individualized review process is important to ensure diversity beyond the minorities in the Top Ten Percent, many of whom may come from low-performing schools and be stigmatized as such.
Civin says that African-American students still feel isolated on campus and in classrooms — considering themselves “tokens.” Fostering a more diverse student body can help alleviate that isolation and break down stereotypes, which can be harmful to all members of the campus community.
There should not be some “absolute cap” based on raw numbers, Civin says. “In a classroom with more than one or multiple or a critical mass of students, there are many more opportunities for all students to experience the different backgrounds as individuals and see … students of a whole variety of backgrounds.”
Roger Clegg, the president and general counsel for the Center for Equal Opportunity, says the case could make its way back to the highest court.
“It’s a very important case, particularly since it often happens that once the Supreme Court is familiar with a particular case, it makes more than one trip up to the High Court,” Clegg says. “If the Fifth Circuit again upholds the university’s use of racial and ethnic preferences in admissions, we hope that the Supreme Court will again review the case — and the whole question of whether there is really a ‘compelling’ interest in such discrimination, given its many heavy costs and only dubious benefits.”
Civin says that the use of race is necessary because of the increasingly globalized and diverse world.
“We continue to think that a modest but significant consideration of race can be necessary for universities to ensure that the pathways to leadership that universities — including flagships like UT — provide remain open to students of all backgrounds,” he says. “We think that there are a lot of barriers to full and equal opportunities in higher education. Making sure that those pathways are open is so critical.”
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