How many bites does Abigail Fisher get at this apple? Fisher was an applicant who sued the University of Texas at Austin in 2008 after she was denied admission both on the automatic admissions policy (the Percentage Plan) and by the holistic review process. She claimed her denial was due to her being white. In 2013, the Supreme Court held that the Fifth Circuit had erred when it did not apply “strict scrutiny” in its review. Upon remand, in July 2014, a three-judge panel of the Circuit carefully reviewed and upheld (2 to 1) the University’s policies. Fisher’s appeal of that ruling has been granted cert and will be heard again by the Court.
Fisher was not eligible for the Percentage Plan because she was not a good enough high school student to qualify. She was not admitted through the second review accorded many UT-Austin applicants. She has lost at each turn, somehow seeking extra opportunities to prove she was denied admission because of her race. Now, the Supreme Court has decided to accept and encourage yet another attempt at the prize, even though she graduated from another college and is not eligible as the full-time first-time freshman she would have been had her record been better.
In short, UT-Austin cannot be the only college in the country to which Grutter v. Bollinger (the 2003 case which allowed the use of affirmative action in a modest fashion, subject to state laws and institutional policies) does not apply. They have been both fair and transparent, and Fisher has not squarely challenged the Percentage Plan. But UT’s use of this race neutral plan—mandated by state law—does not mean she should be allowed to challenge a lawful affirmative action plan. SCOTUS cannot keep sending out mixed signals about the viability of an admissions process that was found to be constitutional. And when the conservative Fifth Circuit has determined the plan upon remand was constitutional, that should be the end of it.
If the news that the former UT-Austin president exercised political judgments in some admissions has caused the Court pause, they had better steel themselves for dozens of such cases, given the widespread use of such discretionary admissions. And in Texas, I think I am likely correct when I guess that the overwhelming number of such requests and decisions were on behalf of Anglo students.
One of the last bastions of white supremacy is undeserving plaintiffs challenging laws that they think disadvantage them. Even under the race-neutral Percentage Plan, which I helped draft, whites constitute more than half the recipients in a state where white high school graduates are only 30% of the total. Where is the unfairness? She and her legal team should quit wasting the Court’s time, and the Court should stop encouraging rear guard actions such as Fisher’s. Such a challenge is waving a confederate flag long after it should have been retired.
Michael A. Olivas is the William B. Bates Distinguished Chair of Law at the University of Houston and the director of the Institute for Higher Education Law and Governance. His most recent book, Suing Alma Mater: Higher Education and the Courts, was published by Johns Hopkins. It was chosen as the 2014 winner of the Steven S. Goldberg Award for Distinguished Scholarship in Education Law, given annually by the Education Law Association “in recognition of an outstanding article, book, book chapter, or other form of scholarly legal writing in the field of education law.”