This morning, the Supreme Court of the United States granted a writ of certiorari (see page 5) to hear once again the Fisher v. University of Texas case in light of the Fifth Circuit Court of Appeals findings on remand. In doing so, the high Court is sure to add to its evolving body of precedent regarding the constitutionality of affirmative action in admissions.
Race-conscious admissions policies were first proposed at postsecondary institutions on the heels of civil rights legislation prohibiting discrimination on the basis of race. Guidelines for applying and interpreting these policies, however, were never clearly articulated until the Supreme Court’s 1978 opinion in Regents of the University of California v. Bakke, permitting postsecondary education institutions to consider race in admissions decisions, a practice which gained opposition in the twenty years following Bakke.
In 1996, the Fifth Circuit’s decision in Hopwood v. University of Texas, an important precursor to the Fisher case, restricted admissions practices that consider race in university admissions decisions at public universities. But because the Supreme Court never granted a writ of certiorari, this case was only binding precedent in the Fifth Circuit jurisdictions of Texas, Louisiana, and Mississippi. In response to the Hopwood decision, the Texas legislature enacted H.B. 588 in 1997, known as the Top Ten Percent Plan, an ostensibly race-neutral admissions policy guaranteeing an applicant graduating in the top ten percent of his or her high school class admission to any Texas public university of his or her choice. However, the plan also permits the inclusion of 18 academic and socioeconomic criteria, several of which have been classified as proxies for race, that institutions may consider when considering admissions for students outside the top ten percent of their high school class.
Shortly after the Hopwood decision in the Fifth Circuit, the Supreme Court departed from its Bakke precedent in 2003, holding in Gratz v. Bollinger that automatically awarding admission points to applicants from certain racial minority groups was unconstitutional.
Most recently, in 2013, the Court was asked to consider the constitutional validity of the “race-neutral” Texas plan in Fisher v. University of Texas. However, it punted on the merits of the case. Recapitulating the judicial standard of review the Court articulated in Gratz and Bakke, the Supreme Court held that the lower courts did not view the Top Ten Percent Plan in the light of strict scrutiny, and remanded the case to the Fifth Circuit for findings consistent with the judicial standard. On remand in July 2014, the Fifth Circuit found, in a 2-1 panel decision, the policy to be narrowly tailored to achieving Texas’ stated interest. The plaintiff’s request for an en banc hearing of her appeal was denied in November 2014, and as this post previously mentioned, her petition for a writ of certiorari was granted today.
Since the Supreme Court’s 2013 decision never reached the merits of the case, it is expected that the Court will now have to address the race-conscious admissions plans at the University of Texas head-on, rather than, as it did in its previous decision, remanding the case on procedural grounds. For every higher-ed-law-head out there, this Texas showdown has the makings of a must-read SCOTUS opinion due out next summer.