How Will Fisher v. University of Texas Affect the URM Boost? Forum

[Br3v]

It's important to remember that the current SCOTUS justices have a tendency to overreach. For instance, Citizens United was originally only applying to one small provision of the McCain-Feingold Act, and the justices seized it as an opportunity to overturn over a hundred years of judicial precedent.

Thanks for stopping by, Rachel Maddow

[Br3v]

Also, Buckley

[Emma.]

Didn't seem from oral argument that there would be 5 votes for a broad ruling overruling Grutter. I don't even know that the Chief would be up for that, let alone Kennedy.

UT apparently didn't provide much data on the diversity they get through the top 10% plan, so I could see the Court saying they haven't met their burden under strict scrutiny. But that ruling wouldn't have much if any effect on the vast majority of schools that do a full holistic review.

Scalia, Roberts and Alito, grilled UT's lawyer and made it explicitly clear that they hate affirmative action, not surprising. Thomas as usual didn't say anything, but everybody knows he's against affirmative action and that he's the most conservative justice on the court. The liberal judges: Breyer, Ginsburg and Sotomayor defended AA, and Kennedy (the swing vote) was more so irritated at the fact that they were arguing the same case after it was sent back to the appeals court a couple years back. Furthermore, Kennedy has never ever voted to uphold affirmative action, so if precedent is at all indicative of how he'll vote this time around, it doesn't bode well for affirmative action. Moreover, i'm pretty sure this would overturn Grutter and make using race as a factor in admissions illegal, would it not?

No. Not necessarily. And I don't think the Chief made much "explicitly clear." But you are missing the point. Kennedy and Roberts could both vote against the UT admissions program without striking down affirmative action in college admissions nationwide.

[Lad]

Didn't seem from oral argument that there would be 5 votes for a broad ruling overruling Grutter. I don't even know that the Chief would be up for that, let alone Kennedy.

UT apparently didn't provide much data on the diversity they get through the top 10% plan, so I could see the Court saying they haven't met their burden under strict scrutiny. But that ruling wouldn't have much if any effect on the vast majority of schools that do a full holistic review.

Scalia, Roberts and Alito, grilled UT's lawyer and made it explicitly clear that they hate affirmative action, not surprising. Thomas as usual didn't say anything, but everybody knows he's against affirmative action and that he's the most conservative justice on the court. The liberal judges: Breyer, Ginsburg and Sotomayor defended AA, and Kennedy (the swing vote) was more so irritated at the fact that they were arguing the same case after it was sent back to the appeals court a couple years back. Furthermore, Kennedy has never ever voted to uphold affirmative action, so if precedent is at all indicative of how he'll vote this time around, it doesn't bode well for affirmative action. Moreover, i'm pretty sure this would overturn Grutter and make using race as a factor in admissions illegal, would it not?

No. Not necessarily. And I don't think the Chief made much "explicitly clear." But you are missing the point. Kennedy and Roberts could both vote against the UT admissions program without striking down affirmative action in college admissions nationwide.

This is true, but my guess is that in striking down UT's program they will also declare using race in admissions as unconstitutional.

[Emma.]

Didn't seem from oral argument that there would be 5 votes for a broad ruling overruling Grutter. I don't even know that the Chief would be up for that, let alone Kennedy.

UT apparently didn't provide much data on the diversity they get through the top 10% plan, so I could see the Court saying they haven't met their burden under strict scrutiny. But that ruling wouldn't have much if any effect on the vast majority of schools that do a full holistic review.

Scalia, Roberts and Alito, grilled UT's lawyer and made it explicitly clear that they hate affirmative action, not surprising. Thomas as usual didn't say anything, but everybody knows he's against affirmative action and that he's the most conservative justice on the court. The liberal judges: Breyer, Ginsburg and Sotomayor defended AA, and Kennedy (the swing vote) was more so irritated at the fact that they were arguing the same case after it was sent back to the appeals court a couple years back. Furthermore, Kennedy has never ever voted to uphold affirmative action, so if precedent is at all indicative of how he'll vote this time around, it doesn't bode well for affirmative action. Moreover, i'm pretty sure this would overturn Grutter and make using race as a factor in admissions illegal, would it not?

No. Not necessarily. And I don't think the Chief made much "explicitly clear." But you are missing the point. Kennedy and Roberts could both vote against the UT admissions program without striking down affirmative action in college admissions nationwide.

This is true, but my guess is that in striking down UT's program they will also declare using race in admissions as unconstitutional.

I'd bet they won't, but that's just my opinion from sitting there watching the oral argument. However, Fisher has always assumed the validity of Grutter and the Court typically won't overrule its own precedent without being asked to.

[Troianii]

Very interesting stuff all. Reading these cases always piques my interest.

I gotta be honest, after oral arguments for Fisher v UT II on Wednesday, it doesn't look good for URM's looking to apply next cycle. It seems as if Kennedy, the swing vote will side Thomas, Alito, Roberts and Scalia on this one and vote to end affirmative action altogether. If this is the case there will almost certainly be a precipitous decline in URM representation in many of the T-14 schools, particularly at HYS.

HYS are private schools and can do whatever they want. It would only really impact UVA Michigan and Cal

did the civil rights act get repealed?

I think part of the argument against affirmative action is that it violates the Civil Rights Act of 1964. The idea is that the Civil Rights Act prohibits discrimination on the basis of race by any agency which receives federal funding (which includes private schools, if their students are getting pell grants, etc.), and that affirmative action is discrimination. I think this one is fairly easy to understand - if it was the reverse, and schools had policies giving preference to whites, everyone would call it racial discrimination - discrimination is discrimination. Whether you discriminate against whites or blacks its still discrimination.

Scalia, Roberts and Alito, grilled UT's lawyer and made it explicitly clear that they hate affirmative action, not surprising. Thomas as usual didn't say anything, but everybody knows he's against affirmative action and that he's the most conservative justice on the court. The liberal judges: Breyer, Ginsburg and Sotomayor defended AA, and Kennedy (the swing vote) was more so irritated at the fact that they were arguing the same case after it was sent back to the appeals court a couple years back. Furthermore, Kennedy has never ever voted to uphold affirmative action, so if precedent is at all indicative of how he'll vote this time around, it doesn't bode well for affirmative action. Moreover, i'm pretty sure this would overturn Grutter and make using race as a factor in admissions illegal, would it not?

I mostly just want to make note about Thomas's jurisprudence. I don't think the conservative v liberal mode is useful with judges, and Thomas is more than just a conservative. I realize this isn't going to be news to most here, but he's a textualist who doesn't care much about precedence. And I read once that he doesn't speak in court because he believes that in all but one or two cases a year, the justices know their opinion before the case is even heard.

I think that this will be something similar to what it was before. I don't think we're going to get a decision saying AA is legal, nor are we going to get one saying "it ends here", we're going to get some kind of half measure. Previously universities were told that have 25 years to phase out AA, if I remember right - and they've got 12 left? With what I presume is not signs of scaling back. I assume the judges will insert something more firm saying that universities have to start phasing it out, but will still give them ample time to do so.

[Clearly]

Wow, John_rizzy_rawls. I wonder how he's doing.

[mornincounselor]

No. Not necessarily. And I don't think the Chief made much "explicitly clear." But you are missing the point. Kennedy and Roberts could both vote against the UT admissions program without striking down affirmative action in college admissions nationwide.

Parents Involved?

[+] Spoiler

In an area as sensitive as the government’s use of express racial classifications we will not put our faith in the good intentions of the government alone. It is also inaccurate to describe these plans as inclusive rather than exclusive.They do not exclude all members of a particular racial group from school, but they do exclude individuals solely on the basis of race.
In our cases have repeatedly explained that the right to equal protection is an individual right not a group right. . .

The way “to achieve a system of determining admission in public schools on a nonracial basis is to stop assigning students on a racial basis”.

We conclude that these racial classifications violate the equal protection clause of the Fourteenth Amendment and therefore reverse the judgments of the Courts of Appeals for the Sixth and Ninth Circuits and remand for further proceedings.

Parents Involved in Community Schools v. Seattle School District No. 1, Oyez, https://www.oyez.org/cases/2006/05-908 (last visited Dec 14, 2015).

I agree they could rule in this case without ruling on the issue of "holistic" evaluations generally.

[+] Spoiler

To me, it seems like perhaps the best challenge to "holistic" would come in the law school context where one could use a more comprehensive LSN data source to show that the only "soft" factor which really affects the GPA/LSAT is diversity (and that factor has a dramatic effect).

I would think such a case would be even stronger if they used evidence showing that not only were diverse applicants given a significant advantage in admissions, these diverse students are also given much more in terms of scholarship opportunities, solely on the basis of their race.

But, perhaps scholarships fall under "race-neutral alternative recruiting tools."

I think another great source of information would be any studies looking at the relative success of diverse applicants and their levels of achievement and self-confidence in schools where the classes around them are significantly better-qualified v. schools where their credentials are more on par with their classmates.

Scalia's "slower-track" comments seem a relevant inquiry. (See: http://www.nationalaffairs.com/doclib/2 ... ot.pdf)

[+] Spoiler

"The average African-American first- year law student has a grade-point average in the bottom 10% of his or her class. And while undergraduate GPAs for affirmative-action benefi- ciaries aren’t quite as disappointing, that is in part because, as explained below, affirmative-action beneficiaries tend to shy away from subjects like science and engineering, which are graded on a tougher curve than other subjects. . .

Lower grades sap the academic self-confidence of African- American students at elite schools, according to the authors, which in turn causes them to abandon their freshman interests in academic ca- reers. Their counterparts at non-elite schools, on the other hand, are more likely to persist and to ultimately succeed. These counterparts enjoy school, in part because they correctly perceive that they are good at it, and they want to stay on campus to pursue careers in academia."

[AfrocentricAsian]

Mismatch Theory is bullshit and I find it funny how he tries to selectively apply it to science majors when science majors aren't the only students that AA may affect. Going to a more selective university opens more doors for these students, stop trying to shut them.

[davey jones]

Post removed.

[PoopNpants]

So I've done a fair bit of reading regarding this case, basically the Fisher lawyers are trying to argue that the 10% plan is sufficient for achieving diversity at UT and thus taking race into account for the other applicant pool is unnecessary. While the Supreme Court wants Texas to apply with "strict scrutiny" why they are forced to use race in order to get enough minorities, UT isn't able to definitely say exactly how many minorities is enough to achieve "critical mass", which has been traditionally defined as when there are enough minorities around so that those attend don't feel like token members of the student body. The dissent of the 5th district appeal, which ruled 2-1 in favor of UT, basically pointed this out, and UT can't really say a concrete number or else they would be accused of using a quota system that goes against Bakke. And since they can't say anything close than exact figure, then they would be accused of not narrowing their AA program as being as narrow as possible in order to adhere to "strict scrutiny". I'd be shocked to see Kennedy support UT although they might not ban AA all together considering the uniqueness of UT's admission policies, which basically rely on high school segregation and were still unable in getting an adequate (in my opinion) amount of Hispanics and blacks. Achieving diversity is still a "compelling interest" in public universities however the S.C. might rule that in Texas's case it is unnecessary and therefore unconstitutional in this aspect. This whole case is a real clusterfuck though it will be real interesting to see how it turns out

[Emma.]

So I've done a fair bit of reading regarding this case, basically the Fisher lawyers are trying to argue that the 10% plan is sufficient for achieving diversity at UT and thus taking race into account for the other applicant pool is unnecessary. While the Supreme Court wants Texas to apply with "strict scrutiny" why they are forced to use race in order to get enough minorities, UT isn't able to definitely say exactly how many minorities is enough to achieve "critical mass", which has been traditionally defined as when there are enough minorities around so that those attend don't feel like token members of the student body. The dissent of the 5th district appeal, which ruled 2-1 in favor of UT, basically pointed this out, and UT can't really say a concrete number or else they would be accused of using a quota system that goes against Bakke. And since they can't say anything close than exact figure, then they would be accused of not narrowing their AA program as being as narrow as possible in order to adhere to "strict scrutiny". I'd be shocked to see Kennedy support UT although they might not ban AA all together considering the uniqueness of UT's admission policies, which basically rely on high school segregation and were still unable in getting an adequate (in my opinion) amount of Hispanics and blacks. Achieving diversity is still a "compelling interest" in public universities however the S.C. might rule that in Texas's case it is unnecessary and therefore unconstitutional in this aspect. This whole case is a real clusterfuck though it will be real interesting to see how it turns out

This is pretty much the size of it. Though it seem to me there's a small possibility that AK would vote to remand to the district court for further development of the record. Fisher III?

[PoopNpants]

So I've done a fair bit of reading regarding this case, basically the Fisher lawyers are trying to argue that the 10% plan is sufficient for achieving diversity at UT and thus taking race into account for the other applicant pool is unnecessary. While the Supreme Court wants Texas to apply with "strict scrutiny" why they are forced to use race in order to get enough minorities, UT isn't able to definitely say exactly how many minorities is enough to achieve "critical mass", which has been traditionally defined as when there are enough minorities around so that those attend don't feel like token members of the student body. The dissent of the 5th district appeal, which ruled 2-1 in favor of UT, basically pointed this out, and UT can't really say a concrete number or else they would be accused of using a quota system that goes against Bakke. And since they can't say anything close than exact figure, then they would be accused of not narrowing their AA program as being as narrow as possible in order to adhere to "strict scrutiny". I'd be shocked to see Kennedy support UT although they might not ban AA all together considering the uniqueness of UT's admission policies, which basically rely on high school segregation and were still unable in getting an adequate (in my opinion) amount of Hispanics and blacks. Achieving diversity is still a "compelling interest" in public universities however the S.C. might rule that in Texas's case it is unnecessary and therefore unconstitutional in this aspect. This whole case is a real clusterfuck though it will be real interesting to see how it turns out

This is pretty much the size of it. Though it seem to me there's a small possibility that AK would vote to remand to the district court for further development of the record. Fisher III?

Maybe it's possible but I'm really confused why they even took another look at this case due to the fact that the petitioner can't even benefit from it and really has no injury. Not to mention they are currently 2 other cases being pursued by this conservative advocacy group suing Harvard and UNC in the district courts that might have more broader application if the conservative justices are interested in ending AA for good. Considering Clinton will most likely be president and 4 justices are going to be entering their 80s the time to try and end AA with 5 conservatives on the bench would be sooner rather than later.

[davey jones]

Post removed.

[PoopNpants]

can anyone shed light on whether or not justice breyer's comment during oral arguments that the court said they would not "kill AA through death by a thousand cuts" has any merit?

he makes it sound like the court is not really considering completely cutting AA from schools and notes that in their first hearing in Fisher, they managed a 7 person majority that did not kill AA, even though no one really held the same beliefs about the case (read: even though scalia + alito wanted to gut the shit out of it, like they do now.)

if you want to reread its here:

http://www.supremecourt.gov/oral_argume ... cript.aspx

page 87, right at the top. im just looking for some opinions on this in particular.

I think he is referring to not turning over Grutter precedent, which states that schools have a "compelling interest to get diversity in the student body for educational benefits", as this specific case is basically about whether or not holistic review is necessary to achieve those goals.

[lacrossebrother]

This case has nothing to do with whether holistic review is necessary...it's whether TTP is the least intrusive means of achieving those goals.

[PoopNpants]

This case has nothing to do with whether holistic review is necessary...it's whether TTP is the least intrusive means of achieving those goals.

So what does that mean if it is or isn't the least instrusive means?

[Emma.]

This case has nothing to do with whether holistic review is necessary...it's whether TTP is the least intrusive means of achieving those goals.

So what does that mean if it is or isn't the least instrusive means?

If it isn't, then UT's TTP/holistic hybrid admissions plan fails strict scrutiny and is unconstitutional.

[PoopNpants]

This case has nothing to do with whether holistic review is necessary...it's whether TTP is the least intrusive means of achieving those goals.

So what does that mean if it is or isn't the least instrusive means?

If it isn't, then UT's TTP/holistic hybrid admissions plan fails strict scrutiny and is unconstitutional.

Lemme rephrase, what would that mean for schools besides UT undergrad?

[Emma.]

This case has nothing to do with whether holistic review is necessary...it's whether TTP is the least intrusive means of achieving those goals.

So what does that mean if it is or isn't the least instrusive means?

If it isn't, then UT's TTP/holistic hybrid admissions plan fails strict scrutiny and is unconstitutional.

Lemme rephrase, what would that mean for schools besides UT undergrad?

Depends on how broadly the Court frames its opinion. Seems to me there's a good chance it won't mean the end of affirmative action in admissions, but might mean that schools have to work harder to justify those programs.

[timmyd]

My best guess is they overturn the Fifth Circuit. Under the Court's precedent, it would be hard to reach a different result. Succinctly, the inquiry is whether the top 10% program provides the diversity--that the Court has held is a compelling state interest--without the university having to implement further affirmative action policies. I'm not sure if it is, but I think the Court will hold in the affirmative. Its all kind of a sham in my view. Strict scrutiny, if it means anything at all, should mean that the school can only use race as a complete last resort (there is language from the Grutter opinion to the contrary). Schools have a ready alternative to using race: lowering admission criteria. Thomas made this point in his dissent, and it only fails because O'Connor claimed that schools did not necessarily have to employ measures that would harm their eliteness. That turns the traditional strict scrutiny analysis on its head. Really, I would argue, and this has indeed been urged in the past, that affirmative action policies should be subject to intermediate scrutiny. This is so because the 14th Amendment's purpose, pretty clearly, is to lift a formerly-enslaved and utterly-isolated minority group from the depths of subordination.

[Phil Brooks]

My best guess is they overturn the Fifth Circuit. Under the Court's precedent, it would be hard to reach a different result. Succinctly, the inquiry is whether the top 10% program provides the diversity--that the Court has held is a compelling state interest--without the university having to implement further affirmative action policies. I'm not sure if it is, but I think the Court will hold in the affirmative. Its all kind of a sham in my view. Strict scrutiny, if it means anything at all, should mean that the school can only use race as a complete last resort (there is language from the Grutter opinion to the contrary). Schools have a ready alternative to using race: lowering admission criteria. Thomas made this point in his dissent, and it only fails because O'Connor claimed that schools did not necessarily have to employ measures that would harm their eliteness. That turns the traditional strict scrutiny analysis on its head. Really, I would argue, and this has indeed been urged in the past, that affirmative action policies should be subject to intermediate scrutiny. This is so because the 14th Amendment's purpose, pretty clearly, is to lift a formerly-enslaved and utterly-isolated minority group from the depths of subordination.

I agree. It seems absurd to draw a moral equivalence between policies designed to hurt a minority and policies designed to help a minority. Subjecting both to strict scrutiny draws this moral equivalence. I believe the meaning of the 14th Amendment is anti-subordination, not anti-classification.