Anthony Kennedy

Photo Credit: Chelsea Purgahn | Daily Texan Staff

In a 6-2 decision Tuesday, the Supreme Court issued a ruling allowing the state of Michigan to ban the use of race as a factor in its college admissions processes, and, according to a UT law professor, this may open the door for a constitutional ban on affirmative action in Texas. 

The ruling comes nearly a year after the Court sent Fisher v. Texas, the case determining the legality of the University’s race-conscious admissions policy, back to the Fifth Circuit District Court. Judges on the court have yet to issue their ruling on the Fisher case.

Justice Anthony Kennedy wrote the majority opinion of Schuette v. Coalition to Defend Affirmative Action, ruling that neither the Supreme Court nor Congress has the authority to prevent state voters from deciding whether to allow affirmative action polices in government decisions, including college admissions processes.

The decision upheld the legality of the Michigan Civil Rights Initiative, also known as Prop. 2, a 2006 ballot initiative that amended the state’s constitution to prohibit discrimination or preferential treatment for any individual or group “on the basis of race, sex, color, ethnicity or national origin.”

Kennedy wrote that the Michigan case, like the Texas case, is not about the constitutionality or merits of race-conscious admission policies.

“The question here concerns not the permissibility of race-conscious admissions policies under the Constitution, but whether, and in what manner, voters in the states may choose to prohibit the consideration of racial preferences in government decisions, in particular with respect to school admissions,” Kennedy wrote.

In his opinion, Kennedy also addressed Fisher v. Texas, in which Abigail Fisher sued the University after it denied her undergraduate admission in 2008. Fisher, who is white, claimed UT denied her admission because of her race.

Four states — California, Florida, Washington and Michigan — currently ban the use of affirmative action in admissions processes. Adjunct law professor David Gonzalez said Tuesday’s decision will likely cause many senators and representatives across the country to draft laws addressing affirmative action. Gonzalez said he believes in the next few years, Texas voters will likely amend the state’s constitution to ban affirmative action.

“I would guarantee that someone is going to try and draft a law and say ‘let’s ban this — let’s ban any preferential treatment for race,’” Gonzalez said.

In her dissenting opinion, Justice Sonia Sotomayor said Michigan’s ban on affirmative action will “uniquely disadvantage racial minorities” and argued that governing boards at individual universities should have the power to determine admissions policies for themselves.

Joshua Tang, a representative of We Support UT, a group formed to support the University’s admissions policies, said he thinks the use of race in the admissions process allows universities to fully evaluate an applicant.

“Race, in this country, still plays an important role in the experiences that people have, and it’s important that those experiences are recognized when universities are deciding who to admit to their schools,” Tang said.

UT President William Powers Jr. addresses reporters at a press conference following a Supreme Court announcement on Fisher v. Texas.

Photo Credit: Emily Ng | Daily Texan Staff

On June 24, the Supreme Court voted 7-1 to kick back to the Fifth Circuit Court of Appeals the case of Fisher v. Texas, which pitted Abigail Fisher, a white woman who was denied admission to UT-Austin, against the University.

The decision of the Supreme Court came as a surprise to the many who had been expecting a broad ruling on the constitutionality of affirmative action. Instead, the justices’ decision kicked up a cloud of uncertainty, and the immediate impact of the ruling on affirmative action was so vague that both Abigail Fisher and UT-Austin President William Powers Jr. declared victory on national television.


The University certainly has reason to be happy with the ruling, in that the Supreme Court didn’t dismantle UT’s existing admissions criteria. But the court also suggested that the Fifth Circuit had failed to hold UT-Austin’s admissions policy to the standard of “strict scrutiny” required for admissions processes that take into account an applicant’s race, meaning that UT-Austin’s holistic admissions policy will once again be considered in the lower court, and that this time the judges must go over the University’s policies with a finer-toothed comb.

Strict scrutiny, as laid out in relation to affirmative action programs in Regents of the University of California v. Bakke, requires universities that consider race in admissions to prove that doing so achieves a “compelling interest,” such as the benefits of exposure to new ideas that come from having a diverse student body. Moreover, a university must be able to prove that the measures it uses to achieve this “compelling interest” are “narrowly tailored” to its purpose.


In 1996, the Fifth Circuit Court of Appeals dealt a blow to the racial diversity of UT-Austin when it ruled in Hopwood v. Texas that the law school’s use of race in admissions decisions was unconstitutional. The  Hopwood decision led to the removal of race as a consideration in admissions decisions in the state. After Hopwood, minority enrollment at UT dropped, causing the Texas Legislature to put in place the Top 10 Percent Plan in 1997, which increased minority enrollment at the University without explicitly considering race.

Hopwood, however, was reversed by the Supreme Court in the decision of Grutter v. Bollinger, which deferred to universities on decisions about using race in admissions. But last week’s majority opinion, written by Justice Anthony Kennedy, made it clear that deference has its limits. The ruling stated that the Fifth Circuit Court had given too much deference to the University when that court declared it was ill-equipped to “second-guess the merits” of UT’s race-conscious admissions policies. In other words, the Supreme Court declared that the lower court had been too hasty in declaring that UT-Austin’s admissions policy was necessary and fair. 


Justice Kennedy didn’t stop at the issue of deference, however. In addition, he pointed out that one of the linchpins in the Bakke schema was that policies like UT’s could not be used if  “a nonracial approach … could promote the substantial interest about as well and at tolerable administrative expense.” Many have suggested that consideration of a student’s socioeconomic level in admissions policies might be as beneficial to the diversity of the student body as considerations of racial and ethnic backgrounds.

But in 2003, six years after the Legislature passed the Top 10 Percent Plan, UT conducted a study in which minority students reported feelings of isolation and a majority of students agreed that there was a lack of diversity on campus.

That same study also found a shocking lack of black and Hispanic students in classes with five to 24 students: Ninety percent of those classes had one or zero black students, while 43 percent had one or zero Hispanic students. These numbers were used to justify the re-instatement of a racially based admissions policy after Grutter was decided. Although the percentages of minorities in entering classes increased slightly after the law’s implementation, these statistics, in our view, provide suitable justification for UT’s continued use of race as one of many factors in the admissions process.


It has been less than 50 years since the Civil Rights Act of 1964 became law.  According to the Texas Politics project in 2007, 24.8 percent of Texas Hispanics and 23.8 percent of Texas African-Americans live in poverty, compared to just 8.4 percent of whites in Texas.

In sending Fisher back to the lower court, the justices have put at risk affirmative action policies across the nation.

We agree with Justice Ruth Bader Ginsburg, the lone dissenter in the case, who said, “Only an ostrich could regard the supposedly neutral alternatives as race-unconscious... As Justice Souter observed, the vaunted alternatives suffer from ‘the disadvantage of deliberate obfuscation.’” And as we all know, the only way for an ostrich — or the Fifth Circuit — to see the light is to pull its head out of the sand.






UT President William Powers Jr. addresses reporters at a press conference following a Supreme Court announcement on Fisher v. Texas.

Photo Credit: Emily Ng | Daily Texan Staff

Updated at 3:00 p.m.

Original Story 

After a lengthy period of deliberation, the United States Supreme Court has avoided a sweeping ruling on the Fisher v. University of Texas case and instead ruled to send back the deliberation to a lower court for review.

In a 7-1 decision,  the court has decided that the U.S. Court of Appeals for the 5th Circuit will be required to reexamine its opinion in Fisher after the high body found the Fifth Circuit had assumed UT had acted in "good faith" when applying race as a factor in admissions without applying strict scrutiny to its review.  Justice Elena Kagan recused herself from the case, while Justice Ruth Bader Ginsburg issued the sole dissent.

In an opinion authored by Justice Anthony Kennedy, who has previously opposed the use of race as a factor in admissions in favor of other measures such as socioeconomic status, the court also upheld the compelling interest of racial diversity.

"The court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity," wrote Kennedy.

Kennedy's opinion made no mention of the goalpost set in Grutter suggesting public universities could cease using race as a factor in admissions after 25 years. Instead, the opinion only said the use of race in admissions at public universities remains a compelling state interest. 

In a statement, President Williams Powers Jr. said he was "encouraged" by the court's ruling and that the decision would have no effect on the University's admissions process for the next class of 2018. The University has not yet scheduled a date for the Fifth Circut Court hearing, or decided which legal team will represent UT at the court, said Kedra Ishop, vice provost and director of admissions. 

"We will continue to defend the University’s admission policy on remand in the lower court under the strict standards that the Court first articulated in the Bakke case, reaffirmed in the Grutter case, and laid out again today," Powers said, who added at an afternoon press conference that the University hoped to eventually strive to a point where the factoring of race was no longer necessary.

Abigail Fisher, who is white, initiated the lawsuit when she sued the University in 2008 claiming UT violated her right to equal protection when admissions considered her race as a factor in her application. At an afternoon press conference with Fisher on Monday, Edward Blum, director of the Project for Fair Representation, an organization that supports her position, said the court ruling was "a win" given the unusual conseus of the ruling.

"This ruling shows that universities that continue to use race based admissions will find themselves embrolied in polarizing and costly litigation," Blum said.  

In her dissent, Justice Ginsburg argued UT had sufficiently explicated its use of race in admissions. Additionally, she argued the court should consider legacies of discrimination and historic inequality in calculating the compelling interest of race as a factor in admissions.

"Among constitutionally permissible options, I remain convinced, 'those that candidly disclose their consideration of race [are] preferable to those that conceal it,'" Ginsburg wrote. 

The ruling was a victory for supporters of affirmative action, said David Hinojosa, regional counsel for the Southwest office of the Mexican American Legal Defense and Education Fund, a group that filed briefs on behalf of the University last summer.

"It's a great decision by the court reaffirming diversity as a compelling interest," Hinojosa said. "MALDEF expects to dilligently monitor case as it is remanded but we are confident that UT’s limited use of race in admissions will be upheld."

Student supporters of UT's use of race in admissions should feel similarly, said history senior Joshua Tang, head of a student initative to defend the University's admissions policy.

"The opinion from the court today is very interesting," Tang said. "We are very happy that affirmative action continues to be a compelling interest and that the University's current admissions process is continuing to go in effect."

Justice Antonin Scalia and Justice Clarence Thomas both wrote separate opinions concurring with Kennedy, but together argued the precedent of using race as a factor in admissions should be overturned. Glenn Ricketts, spokesman of the National Association of Scholars, which filed briefs on behalf of Fisher last year, said their organization agreed with that proposal.

"We'll have to see what happens, because this obviously isn't over yet," Ricketts said. "We hope the Appeals Court decides to rule on side of favoring individual merit in admissions and not any form of quotas."

Abigail Fisher did not qualify for admission to the University under the Top Ten Percent Law when she applied in 2008, a statewide mandate which automatically admits the top ten percent of in-state graduating high school seniors to Texas public universities every year. Instead, she applied under holistic admissions, which includes race, socioeconomic status, gender and other factors in the application. Fisher was admitted to UT under the CAP program, but instead chose to attend Louisiana State University.

During oral arguments, several justices questioned Fisher’s right to stand, contending she would not have been admitted to the University regardless of the use of race in her application because of her low admissions criteria. Fisher has since graduated from LSU and currently resides in Austin.

UT admits more white students than any other racial group under its race-inclusive admissions policy. Students admitted under race-inclusive admissions also come largely from households with incomes above $50,000.

Currently, the number of students admitted under the Top Ten Percent Law is capped at 75 percent of the incoming class, meaning 25 percent are chosen based on their race and other factors.

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Photo Credit: The Associated Press

WASHINGTON — Concluding two days of intense debate, the Supreme Court signaled Wednesday it could give a boost to same-sex marriage by striking down the federal law that denies legally married gay spouses a wide range of benefits offered to other couples.

As the court wrapped up its remarkable arguments over gay marriage in America, a majority of the justices indicated they will invalidate part of the federal Defense of Marriage Act — if they can get past procedural problems similar to those that appeared to mark Tuesday’s case over California’s ban on same-sex marriage.

Since the federal law was enacted in 1996, nine states and the District of Columbia have made it legal for gays and lesbians to marry. Same-sex unions also were legal in California for nearly five months in 2008 before the Proposition 8 ban.

Justice Anthony Kennedy, often the decisive vote in close cases, joined the four more-liberal justices in raising questions Wednesday about a provision that defines marriage as the union of a man and a woman for purposes of federal law.

It affects more than 1,100 statutes in which marital status is relevant, dealing with tax breaks for married couples, Social Security survivor benefits and, for federal employees, health insurance and leave to care for spouses.

Kennedy said the Defense of Marriage Act appears to intrude on the power of states that have chosen to recognize same-sex marriages. When so many federal statutes are affected, “which in our society means that the federal government is intertwined with the citizens’ day-to-day life, you are at real risk of running in conflict with what has always been thought to be the essence of the state police power, which is to regulate marriage, divorce, custody,” Kennedy said.

Other justices said the law creates what Justice Ruth Bader Ginsburg called two classes of marriage, full and “skim-milk marriage.”

If the court does strike down part of DOMA, it would represent a victory for gay rights advocates. But it would be something short of the endorsement of gay marriage nationwide that some envisioned when the justices agreed in December to hear the federal case and the challenge to California’s ban on same-sex marriage.

Still, the tenor of the arguments over two days reflected how quickly attitudes have changed since large majorities in Congress passed the federal DOMA in 1996 and President Bill Clinton signed it into law. In 2011, President Barack Obama abandoned the legal defense of the law in the face of several lawsuits, and last year Obama endorsed gay marriage. Clinton, too, has voiced regret for signing the law and now supports allowing gays and lesbians to marry.

In 1996, the House of Representatives’ report on the legislation explained that one of its purposes was “to express moral disapproval of homosexuality.” Justice Elena Kagan read those words in the courtroom Wednesday, evoking a reaction from the audience that sounded like a cross between a gasp and nervous laughter.

Editor’s note: On Oct. 10, the U.S. Supreme Court heard oral arguments in Fisher v. University of Texas, a case filed in 2008 by a white woman who claims UT’s race-conscious admissions policy led to the rejection of her application. On a sharply divided Court, Justice Anthony Kennedy, appointed in 1988 by President Ronald Reagan, has delivered the swing vote often and may do so again in this case. We selected some of his most memorable questions and comments from the transcript of last week’s historic oral arguments and offer our own responses about UT’s admissions policy and its effects on campus diversity.

Justice Kennedy asked Fisher’s counsel Burt Rein: “You argue that the University’s race-conscious admission plan is not necessary to achieve a diverse student body because it admits so few people, so few minorities … Then what’s the problem?”

Rein responded that UT’s race-conscious policy is unnecessary when race-neutral alternatives — like the Top 10 Percent Law — could produce greater campus diversity.

The Daily Texan’s view: Rein has a point. Statistics from the admissions office show that the holistic review process admits a much higher percentage of white students than does the Top 10 Percent Law. In 2010 and 2011, six percent of automatic admissions were granted to black students, while only five percent of holistic review admissions went to black students. In 2011, 29 percent of automatic admits were Latino and 14 percent of holistic review admissions went to Latino students.

Meanwhile, the numbers show that white applicants benefited considerably from holistic review. In 2011, 41 percent of automatic and 58 percent of holistic review admissions went to white students. The same trend was seen each year from 2007 to 2010. It’s safe to say that a class made up completely of Top 10 Percent students would be considerably more diverse than current classes, but it would also exclude private school and out-of-state applicants, students from non-ranking high schools and all the otherwise deserving students who, for whatever reason, were in their high school classes’ bottom 90 percent.

Justice Kennedy questioned Fisher’s lawyer Rein regarding a previously established precedent that universities’ use of race must be “narrowly tailored” and serve a “compelling interest”: “And in what respect does this plan fail strict scrutiny under either of those— under both of those categories?”

Rein replied that UT doesn’t have a compelling interest, stating that he doesn’t “believe they’ve shown any necessity for doing what they were doing,” and that UT didn’t adequately consider race-neutral alternatives.

DT’s view: Almost half a century of legal precedent shows that public universities do have a compelling interest in promoting on-campus diversity. UT already uses the Top 10 Percent Law — often cited by Fisher backers as the best race-neutral alternative — to account for 75 percent of each incoming class, but allowing high school rankings to determine the entire class would deny opportunities to many deserving applicants, not just underrepresented minorities. The law was in fact instituted largely to increase racial diversity, but, as Justice Ruth Bader Ginsburg pointed out, it only works “if you have heavily separated schools.” Greater racial equality is one the most important goals our nation is working to reach, so relying solely on the de facto racial segregation that still remains in Texas schools seems a rather pessimistic way to promote diversity. 

Justice Kennedy replied to UT’s counsel Greg Garre, a former Solicitor General of the United States, who argued that admitting students with different experiences — not just different races — is an important factor in creating a positive learning environment for all students on campus: “So what you’re saying is that what counts is race above all.”

DT’s view: This exchange came on the heels of a discussion of the importance of applicants’ economic backgrounds. Justice Antonin Scalia, the most outspoken conservative on the Court, implied that a child of wealthy educated parents who happens to be of an underrepresented minority — Hispanic or African-American — does not deserve any preferential treatment compared to a white student from an “absolutely average” background. Garre contended that the University recruits black and Hispanic students from all different backgrounds, and that a wealthy minority applicant wouldn’t have any advantage over a middle-class white applicant. 

Garre’s insistence on the importance of “different experiences” is the linchpin of UT’s argument. Due to the extent that race and socioeconomics continue to be associated with one another, scarcer are children of wealthy, highly educated African-American parents than of their white counterparts. That is an ugly truth, but one that UT recognizes and seeks to change. Scalia’s hypothetical upper crust black student, as a relative rarity, would bring a different set of experiences to share with peers at UT than would a white student from the same economic background.

Justice Kennedy raised a common criticism of affirmative action policies —  that they serve as a “tiebreaker” to decide which of two otherwise identical applicants gain admission to a university. Near the end of the hearing , Kennedy stated: “I thought that the whole point is that sometimes race has to be a tiebreaker and you are saying that it isn’t ... Then we should just say, ‘you can’t use race, don’t worry about it.’”

DT’s view: UT’s brief makes clear that in holistic review race is only “a factor of a factor of a factor.” It is one of seven attributes considered as “special circumstances,” and those circumstances comprise only one of six equally weighted factors that make up an applicant’s Personal Achievement Score (PAS). The PAS, in turn, does not include evaluations of the mandatory essays and is only one part of an applicant’s overall score.

After making these calculations for each applicant, UT graphs the scores in cells on a matrix and draws a “stair-step line” to determine which cells gain admission and which do not. Never does an admissions officer line up two quantitatively identical applications, one from a white applicant and one from a black applicant, and toss out the white student’s in the interest of diversity. Race is only one of many factors UT considers in order to establish a level playing field and acknowledge the impediments and advantages afforded different students from different backgrounds.