In Fisher v. University of Texas at Austin (“Fisher II”), the United States Supreme Court will decide the constitutionality of the University of Texas’s (“University”) affirmative action policy, and the impact of the Court’s decision is being widely debated. Some commentators fear that the Court is poised to end affirmative action altogether, thus causing reduction in the number of minorities who are admitted to universities across the country. Such concerns are overstated. A careful analysis of the issues in Fisher II, the Justices’ comments during oral argument, and the Court’s affirmative action jurisprudence, suggests that although the University’s admissions policy will likely meet its constitutional demise, the impact on affirmative action policies nationwide will be insubstantial. By way of background, the University’s undergraduate admissions policy consists of three components.
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First, the University enrolls nearly three-quarters of its entering class by granting automatic admission to applicants who graduate in the top ten percent of their high school classes (“Top Ten Policy”). Second, the University maintains an Academic Achievement Index (“AAI”), which results in the admission of applicants who did not graduated in the top ten percent of their class, but who nonetheless have extremely high academic credentials. Third, the University uses a holistic review process that considers an applicant’s AAI and Personal Achievement Index (“PAI”). Until 2005, the PAI was calculated based on weighted scores on two required essays and factors including, but not limited to, leadership qualities, extracurricular activities, work experience, community service, socioeconomic status, and family responsibilities. In 2005, two years after the Court’s decision in Grutter v. Bollinger, the University revised its affirmative action policy to include race in the holistic review process. However, in the University’s holistic review process that year, only 216 African-American and Hispanic students--0.9% and 2.4% of the total applicant pool--gained admission to an incoming class of 6,322. Indeed, the vast majority of the University’s minority students, some whom graduate from largely segregated high schools, are admitted through the Top Ten Program – a race-neutral process. For example, in 2008, 21.5% of the students admitted through the University’s Top Ten Percent Policy were minorities. In light of these facts, the question before the Court in Fisher II is whether the inclusion of race in the University’s holistic review process is narrowly tailored to achieve educational diversity. The answer to this question will likely be no. As discussed below, the inclusion of race in holistic review is neither narrowly tailored nor necessary to achieve the education benefits of diversity. The infinitesimal number of minority students admitted through holistic review, which underscores its ineffectiveness in attracting a “critical mass” of minority applicants, supports this conclusion. Additionally, the University’s inclusion of race in holistic review is predicated on a stereotypical assumption that minority students admitted through the Top Ten Program are less qualified than minorities admitted through the PAI. The University has simply failed to provide any factual basis to support this assumption, or to rebut the argument that it is based on precisely the type of pernicious stereotypes that the Equal Protection Clause forbids. For these reasons, the Court will likely invalidate the University’s admissions policy. However, the effect affirmative action policies across the country will be virtually non-existent. First, invalidating the University’s policy will not – and should not – mean that race can never be considered in the admissions process. In fact, the Court’s has on many occasions reaffirmed the principle that achieving a diverse student body is a compelling state interest, and that race may be one of many factors that universities consider when making admissions decisions. In Fisher I, for example, the Court explained that a university’s “educational judgment that … diversity is essential to its educational mission is one to which we defer,” thus approving of race-conscious admissions policy that satisfy strict scrutiny. Second, and as stated above, the constitutional infirmities in the University’s admissions policy, particularly the holistic review process’s ineffectiveness in attracting minority students, and the stereotypical assumption that drove the University’s decision to include race in this process, are unlike most, if not all, affirmative action programs. Thus, the Court will likely decide Fisher II on narrow grounds and retain the core principle in its affirmative action jurisprudence – race-conscious admissions policies are
First, the University enrolls nearly three-quarters of its entering class by granting automatic admission to applicants who graduate in the top ten percent of their high school classes (“Top Ten Policy”). Second, the University maintains an Academic Achievement Index (“AAI”), which results in the admission of applicants who did not graduated in the top ten percent of their class, but who nonetheless have extremely high academic credentials. Third, the University uses a holistic review process that considers an applicant’s AAI and Personal Achievement Index (“PAI”). Until 2005, the PAI was calculated based on weighted scores on two required essays and factors including, but not limited to, leadership qualities, extracurricular activities, work experience, community service, socioeconomic status, and family responsibilities. In 2005, two years after the Court’s decision in Grutter v. Bollinger, the University revised its affirmative action policy to include race in the holistic review process. However, in the University’s holistic review process that year, only 216 African-American and Hispanic students--0.9% and 2.4% of the total applicant pool--gained admission to an incoming class of 6,322. Indeed, the vast majority of the University’s minority students, some whom graduate from largely segregated high schools, are admitted through the Top Ten Program – a race-neutral process. For example, in 2008, 21.5% of the students admitted through the University’s Top Ten Percent Policy were minorities. In light of these facts, the question before the Court in Fisher II is whether the inclusion of race in the University’s holistic review process is narrowly tailored to achieve educational diversity. The answer to this question will likely be no. As discussed below, the inclusion of race in holistic review is neither narrowly tailored nor necessary to achieve the education benefits of diversity. The infinitesimal number of minority students admitted through holistic review, which underscores its ineffectiveness in attracting a “critical mass” of minority applicants, supports this conclusion. Additionally, the University’s inclusion of race in holistic review is predicated on a stereotypical assumption that minority students admitted through the Top Ten Program are less qualified than minorities admitted through the PAI. The University has simply failed to provide any factual basis to support this assumption, or to rebut the argument that it is based on precisely the type of pernicious stereotypes that the Equal Protection Clause forbids. For these reasons, the Court will likely invalidate the University’s admissions policy. However, the effect affirmative action policies across the country will be virtually non-existent. First, invalidating the University’s policy will not – and should not – mean that race can never be considered in the admissions process. In fact, the Court’s has on many occasions reaffirmed the principle that achieving a diverse student body is a compelling state interest, and that race may be one of many factors that universities consider when making admissions decisions. In Fisher I, for example, the Court explained that a university’s “educational judgment that … diversity is essential to its educational mission is one to which we defer,” thus approving of race-conscious admissions policy that satisfy strict scrutiny. Second, and as stated above, the constitutional infirmities in the University’s admissions policy, particularly the holistic review process’s ineffectiveness in attracting minority students, and the stereotypical assumption that drove the University’s decision to include race in this process, are unlike most, if not all, affirmative action programs. Thus, the Court will likely decide Fisher II on narrow grounds and retain the core principle in its affirmative action jurisprudence – race-conscious admissions policies are