Abigail Fisher, a white applicant to the University of Texas, contends that the university, in giving preference to minority applicants while rejecting her, discriminated against her unlawfully because of her color. The Supreme Court will hear the case this fall; it is likely that Fisher will prevail. The Texas 10 percent law and the special circumstances of that university present complications, of course, but the makeup of the Supreme Court today differs importantly from that of the Court that decided Grutter v. Bollinger in 2003, which authorized universities to use race in admissions in some circumstances.
But how will Fisher prevail? Put another way, how much of Grutter will remain standing when this decision comes down? Might Grutter be flatly overturned? Many fervently hope for that, and I am among them. Grutter v. Bollinger is one of those decisions that were wrong on the day they were decided; it is the Plessy case of the 21st century. Fisher v. University of Texas is a fine vehicle with which the Court may put Grutter into the dustbin of history, where in any case it is very likely to go before long.
In support of Fisher, 17 and one half amicus briefs have been put before the Supreme Court. Every one of them is powerfully argued and penetrating in its way. Without pretending to do full justice to each of those briefs, I here offer as fair and balanced a review of them as I am able, given the unavoidable use of categories and summaries.
First, a number of the briefs call for the outright reversal of Grutter v. Bollinger. The Texas Association of Scholars puts this best, perhaps, when it says forthrightly: “Racial preferences of any type, and irrespective of the motivation for their use, are unconstitutional under all circumstances.” That wise spirit is echoed repeatedly, and in every case defended eloquently: “Racial categories are arbitrary and ultimately incoherent” (American Center for Law and Justice); “The Equal Protection Clause prohibits classifications of individuals based on race except in the rarest of circumstances,” and therefore “a governmental racial classification is presumptively invalid and may be upheld only upon a showing of extraordinary justification” (Mountain States Legal Foundation); “Race and ethnically-based admissions policies are crude, inherently ambiguous, and unsound constructs that can never be narrowly tailored to further a compelling interest in diversity” (Judicial Watch and Allied Educational Foundation); “The use of race-conscious policies in pursuit of a non-remedial interest, like the interest in ‘diversity’ approved in Grutter v. Bollinger, violates the principle of equal opportunity for military personnel” (Allen B. West, member of Congress and lieutenant colonel, U.S. Army, ret.). Summing it all up quite pithily is the statement of the American Civil Rights Union, “The time has come to end racial preferences in college admissions.”
Second, it is entirely possible, perhaps even probable, that the Court will find for Fisher on narrower grounds. In Grutter it was made plain that universities ought to rely upon race-neutral alternatives if they can by so doing achieve the appropriate objective. Texas had enacted a law ensuring admission to the University of Texas to the top 10 percent of every high school graduating class in Texas, and had achieved thereby a degree of racial diversity at UT greater than that achieved earlier using preferences. That settles the matter without overturning Grutter, according to a brief submitted by the group Current and Former Federal Civil Rights Officials: “The legislature’s 10 percent plan was an effective race-neutral alternative.”