February 21, 2012

Fisher v. University of Texas: An opportunity for equal opportunity

By Joshua P. Thompson Senior Attorney

After so much waiting, the Supreme Court has finally decided to take up Fisher v. University of Texas.  PLF has been involved in this case for three years now.  [In this video, my beard doesn’t even have a hint of gray.]  The case challenges the University of Texas’s decision to treat prospective students differently because of their race.  The University defends this decision on the grounds that they need to treat students differently in order to further the goal of having a diverse student body.

This case offers so much promise for defenders of equality under the law (like PLF).  The Supreme Court could do so much toward ensuring that government treats students equally as the Fourteenth Amendment commands. A holding by the Court that found the University’s race-based admissions process unconstitutional could go three ways (each would be seen as great victories for equality under the law).

First, the Supreme Court could hold that the University’s admissions policy is unconstitutional because it is not “narrowly-tailored.”  This means that the Court would say that universities may consider race in limited circumstances, but that the precise policy of the university here was too broad.  Such a decision would have profound effects.  Since Grutter v. Bollinger was decided in 2003, unviersities have used that Court’s rationale to use race, unfettered, in admissions decisions.  The University of Texas was no different; it argues that its policy follows Grutter perfectly.  But, by holding that the policy was not narrowly tailored, the Supreme Court would put some much needed teeth into the diversity rationale.  Universities could not just say “diversity” and survive constitutional challenges.  They would have to demonstrate that their policy was a last resort, employed only after all race-neutral alternatives were exhausted, and extremely limited in its consideration of a student’s race.  Such a decision would severely curtail the ability of universities to stereotype their students.

Second, the Supreme Court could hold that “diversity” is not a compelling interest outside of the “highly selective” law school context.  The Grutter Court, the only Court to ever find diversity to be a compelling state interest, heavily relied upon the unique factual circumstances at the University of Michigan’s law school.  It noted how highly selective law schools (like that at Michigan), produce a large segment of the country’s leaders (from judges, to ambassadors, to politicians, etc.)  Further, the court noted how the legal profession was unique in its need for diversity.  But, the University of Texas is no law school.  It grants race-based preferences to students who want to study particle physics, Farsi, and chemical engineering, majors where the diversity rationale makes even less sense.  If the Supreme Court holds that their is no compelling interest in diversity at the undergraduate level, hundreds of thousands of undergraduate students across the country will be spared the pernicous treatment that is race-based admissions.

Third, the Supreme Court could revist its decision in Grutter.  The Court could hold that the diversity rationale was wrong-headed; that there is no compelling interest in diversity at any time (law school or undergrad).  This holding would go furthest in ensuring that individuals’ equal protection rights are not infringed.  It would return the Equal Protection Clause back to where it rightly belongs.  Such a decision would forbid any educational institution from considering a student’s race, unless necessitated by de jure segregation (i.e. that institution had engaged in previous over, intentional discrimination (like the Topkea Board of Education).

With Fisher granted, hope springs eternal.  This case will have profound effects.  Let’s hope the Supreme Court gets it right, and secures an individual’s right to equal protection.

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