Monthly Archives: December 2015

Is this the Beginning of the End for Affirmative Action?

UnknownFisher v. University of Texas at Austin (2011) serves as an illustration of how the intersection of race and education continues to present challenges for both legal and educational communities in the 21st century. Similar to the petitioners of Bakke (1978) and Grutter (2003), Abigail Fisher, a White woman, also argued against using race as a means to achieve diversity within the student population of the university. Although Fisher did not graduate in the top 10% of her high school class, she argued that UT’s denial violated her Fourteenth Amendment right to equal protection because she was denied admission to a public university in favor of minority students with lesser credentials.

Due to the fact that the court denied Fisher an en banc hearing by a 9-7 ruling, her lawyers filed a petition seeking review by the U.S. Supreme Court in September of 2011. By October 2012, Fisher was on the calendar of the Supreme Court. The Court declined to adopt Fisher’s argument, ruling that her continued pursuit of her claim was no longer viable. According to UT, had it exclusively employed race-neutral admissions, Fisher would not have been admitted not only due to the fact that she did not graduate in the top 10% of her class, but due to UT’s competitive individualized review of applications, which included an Academic Index (AI) and a Personal Achievement Index (PAI). The AI consists of grades and standardized test scores and “race is considered in a contextualized fashion only in the PAI” (Fisher v. University of Texas-Austin, 2013). Fisher argued on the assumption that her PAI was lower because of race. UT stated that Fisher would have still been denied even if she had a “perfect” PAI. In a decision of 7-1, the U.S. Supreme Court vacated their decision on June 24, 2013, sending Fisher back to the Fifth Circuit Court of Appeals, stating that it failed to apply “strict scrutiny” (Fisher v. University of Texas-Austin, 2013).

Arguments for Fisher continued on November 13, 2013 at the U.S. Court of Appeals for the Fifth Circuit. . . . some sources have reported that the hearing examined UT’s race-conscious admission policies, race-neutral alternatives, and how the definition of critical mass is defined and what should take place after it has been reached. The Court’s examination also reflected on UTs history and experience in developing its admissions policies in regards to constitutionality. From 1997 to 2004, UT experimented with multiple admission approaches in efforts to increase minority attendance from high school students in Texas. During this time only 3-4% of students admitted were African American. After UT employed the Top Ten Percent rule, between 2005 and 2008 enrollment of African Americans increased considerably by 28% (Fisher v. University of Texas-Austin, 2013).

McCall, J. M. (2015, p. 16)

After hearing Fisher’s arguments again on November 13, 2015, the Fifth Circuit Court of Appeals, in a 2-1 decision, ruled in favor of UT on July 15, 2014. Following the lower Courts’ refusAl to rehear the case again, Fisher petitioned for the SCOTUS to hear her case on June 29, 2015. She was then granted yet another opportunity to appear on the floor of the U.S. Supreme Court. So, that brings us to December 23, 2015, just fifteen days after the Supreme Court heard once again the oral arguments of both Fisher and UT. My interpretation of the arguments and commentary of the justices, the case was simply is a repeat its first appearance in the Supreme Court in 2013. Taking into account the latter, and analyzing the current status of a American college system that is ambiguous in its interpretation of diversity and ways to achieve it, I am perplexed as to why this case has gone on so long and why it made to the floor of the SCOTUS—again. Continue reading