Editor's note: This is part of a Point/Counterpoint series regarding Fisher v. University of Texas. To read the opposing viewpoint, click here.
Raise your hand if you’re tired of hearing about Fisher v. Texas! Although court cases are by no means a quick or breezy process, it seems that Abigail Fisher’s battle has been pinged around on quite a tumultuous journey through the appellate court pinball machine. After the case made its way to the Supreme Court last year, justices vacated a previous ruling and remanded it to lower courts. The Fifth Circuit Court of Appeals heard the case for a second time, the court sided with the University once again and Fisher’s party was still not satisfied. Petitioners have since sent two requests for the court to hear their case en banc (with a full panel of 15 judges) and been denied both times. So, guys, call me crazy, or maybe just a little impatient — but I think the Fifth Circuit has made its point loud and clear. Team Abigail, it’s time to find bigger Fish to fry.
It’s been eight years since the denied college freshman first called foul play, citing that the University’s use of race as a “plus-one” factor in the admissions process violated the Equal Protection Clause of the 14th Amendment. And since the first go-around in the appellate court failed to apply the proper test of strict scrutiny, it made its way to the high court, where justices deemed it be heard by the Fifth Circuit once again with the added scrutiny.
Although the appellate court sided with the University for a second time in July, Abigail’s disgruntled team of petitioners say the battle is far from over. “This case will be appealed back to the Supreme Court,” Edward Blum, director of the Project on Fair Representation, which has funded Fisher’s case, said in a statement after the appellate court declined, again, to hear her case en banc.
But why? Speculation that the high court would strike down affirmative action altogether has since been quieted. Precedent-setting history was not made during Fisher’s hearing, and even a different opinion from the appellate court would lack the widespread berth that many had hoped for. And the aforementioned chance that the Supreme Court would choose to hear the case again is highly, highly unlikely.
For the less constitutionally-conscious folks out there, race-conscious admissions plans must satisfy a compelling state interest, narrowly tailored to do this in the least restrictive way possible. The question is not whether the university has a compelling interest in diversity — the Supreme Court made that clear last year when it chose not to set new precedent — but whether the University of Texas at Austin itself has an explicit and narrowly tailored plan.
“To deny UT Austin its limited use of race in its search for holistic diversity would hobble the richness of the educational experience in contradiction of the plain teachings of Bakke and Grutter,” wrote Judge Patrick Higginbotham, writing for the Fifth Circuit majority. By seeking to establish a critical mass of students, the University is not discriminating against — or advocating for — certain students. It is merely ensuring a holistically diverse and widespread student body, and it is not doing so without regard to an extremely stringent standard.
Despite claims to the contrary, ensuring a diverse environment still has a place in today’s debate. Though Texas’ top 10 percent rule arguably provides a widespread population of students throughout the state, justices are wary that this law alone could satisfy a diverse critical mass. When used alone, this race-neutral alternative could lead to underperformance of students — or highly competitive students moving to lower-performing districts, taking easier classes in order to meet this guaranteed admissions requirement.
These repeated requests for an en banc hearing only belabor an answer the appellate system has made explicitly clear — Fisher’s day in court is done.
Deppisch is a government senior from League City. Follow Deppisch on Twitter @b_deppy.