In a surprising 4-3 decision Thursday, the Supreme Court ruled in favour of affirmative action in admissions at the University of Texas at Austin (UT).
Conservative-leaning Justice Samuel Alito, however, railed against UT in a dissent more than twice as long as the majority opinion.
In his mind, the university failed, for multiple reasons, to effectively demonstrate that its admission policy needs a racial element and that the one it adopted does, in fact, foster diversity. Even more, by employing affirmative action without these measures, UT engages in racial discrimination, especially against Asian-Americans, according to Alito.
Prior to 2003, UT employed the Top 10% plan, an admissions policy that automatically granted acceptance to students within the top 10% of their graduating class into any public university in the state. That year, the Supreme Court issued a major ruling in Grutter v. Bollinger, which affirmed the partial use of race in college admissions, often referred to as “holistic” review.
UT, along with other universities around the country, quickly adopted similar plans. Today, UT still adheres to the Top 10% plan but fills the remainder of slots — around 25% — using numerous academic and personal factors, including race.
That brings us to the current case. In 2008, UT denied admission to Abigail Fisher, a white student not ranked within the top 10% of her class. She sued the university, claiming it accepted other, less qualified black and Hispanic students instead, thus discriminating against her and violating her right to equal protection under the law.
In its 2013, 7-1 decision to remand Fisher’s case back to a lower court, the Supreme Court further defined how UT could meet “strict scrutiny,” a legal standard to determine constitutionality. In this case, it mandated UT must have a “narrowly tailored” admissions policy that serves a compelling interest.
“Something strange has happened since our prior decision in this case,” Alito began his lengthy opinion.
“What the majority has now done — awarding a victory to UT in an opinion that fails to address the most important issues in the case — is simply wrong,” he later added.
In his 50-page dissent, Alito argued that UT doesn’t demonstrate the needs for its race-based admissions policy, nor that its use ameliorates a lack of racial diversity. Thus, the school can’t satisfy “strict scrutiny” or “narrowly tailor” its policy, as required.
First, UT hasn’t demonstrated it couldn’t achieve sufficient racial diversity by relying solely on the Top 10% plan, according to Alito. UT has argued that the race-based portion of its admissions policy allows acceptance of “the African-American or Hispanic child of successful professionals in Dallas” — wealthy, high-performing minorities, in other words — as the university has argued.
Focusing solely on the top 10% of students instead grants admission to the top-performing minority students at majorly black and Hispanic schools, who wouldn’t have achieved the same grades if forced to compete against white and Asian-American students and wouldn’t add as much to the school.
That reasoning “turns affirmative action on its head,” Alito argued. “Affirmative-action programs were created to help disadvantaged students.”
In addition to failing to demonstrate the need for its current admissions strategy, UT never addressed whether its policies actually foster racial diversity, Alito argued. Instead, UT claimed it needs to achieve a “critical mass” of black and Hispanic students, but the school didn’t define it in “anything other than the vaguest terms,” Alito wrote.
“Instead, UT prefers a deliberately malleable ‘we’ll know it when we see it’ notion of critical mass,” he continued, invoking the 1964 Supreme Court’s infamous description of pornography.
In fact, UT claims it doesn’t keep records about how or how many students are affected by the consideration of race in the school’s admissions, although Alito argued the school had “every reason” to do so.
The conservative justice went on to cite a slew of previous legal opinions — including one from Kennedy, the author of the majority opinion — that argue equal protection must be race-neutral, lest the application of race-based policies affirm dangerous stereotypes about the very minorities the clause intends to protect.
In Alito’s mind, that’s precisely why the “strict scrutiny” standard matters.
On top of failing to meet strict scrutiny, Alito argued, the university discriminates against Asian-Americans. UT repeatedly expressed the desire to attract and enroll more black and Hispanic students but ignored Asian-Americans. Although based on the state’s population, Asian-Americans “overrepresented” the student body, one study cited by UT found that more classrooms lacked Asian-Americans than Hispanic students.
The university also “lumped” together Vietnamese, Cambodian, Hmong, and Indian students, among others, to make up the “Asian-American” label, according to Alito.
While Alito’s analysis of UT’s policies directly contrasts that of the majority, the conservative justice also took aim at the other justices for insinuating the case has gone on too long for Fisher to see any reasonable reparations.
“The majority cannot side with UT simply because it is tired of this case,” Alito concluded.
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