Every eye in American higher education is about to be on Austin again. Next Monday, the University of Texas will file a brief to the U.S. Supreme Court in the latest Abigail Fisher anti-affirmative action case, to be heard by the court in December.
The Fisher case — supposed to be long gone by now, having already been to SCOTUS once — is back for a sequel, and rulers of academe from Harvard to the University of North Carolina will be on tenterhooks to see how this latest version goes.
UT escaped the snare of the Fisher suit once — Fisher argues the university dilutes entrance requirements for black students when it doesn’t need to — but UT bumbled its way back into legal peril with a number of goofs, not the least of which may have been its handling of UT Regent Wallace Hall of Dallas.
Last time the university was before the court, it promised the justices that it uses all kinds of esoteric criteria to keep the admissions process clean and totally squared up. Hall is the regent who uncovered a boiler-room operation in which the president of the university and some regents had been peddling coveted law school and undergraduate admissions out the back door like hot cell phones from the trunk of a car.
Nobody knows for sure, but it’s possible SCOTUS did not like being fibbed to.
By the time the Hall matter came to a head, lawyers for Fisher were back in court already complaining to the court that a lower court had failed to follow SCOTUS’ directions for managing the case. Along comes the Hall story, and, after an agonizingly long period of apparent indecision, SCOTUS agreed to hear the thing all over again.
Meanwhile, the anti-affirmative action activist behind the Fisher case, Edward Blum, director of the project on Fair Representation, has expanded his aim to include Harvard and the University of North Carolina, both of which are being challenged on the way they do admissions. So those places obviously will be watching the Fisher case to see if the next shoe is going to fall on them.
This second UT case may or may not include any mention of the Hall story. The central theme is something called “strict scrutiny,” which I think means “scrutinizing very strictly.” Sorry. This is not SCOTUS Blog, you may have noticed. But let me draw a deep breath and try to do better anyway:
Strict scrutiny means the admissions policies of UT have to be examined to see if they are "precisely tailored to serve a compelling governmental interest.”
Example: A policy granting admission to otherwise unqualified daughters of chairmen of certain state legislative committees who might be persuaded to grant new, much fatter pension deals to top UT administrators probably would fail strict scrutiny.
A policy, on the other hand, granting more forgiving admission standards for Native American applicants might pass scrutiny if the university could show that not adopting the policy would leave the school without any Native American students.
Twelve years ago in Grutter v. Bollinger, the University of Michigan advanced an argument that schools use all over the country now, saying that a diverse student body improves the quality of education for all students. There are some interesting new arguments now saying maybe affirmative action makes school more enriching for white kids, but it screws minority students.
Gail Heriot , a professor at the University of San Diego School of Law, has a new article out published as a special report by the conservative Heritage Foundation arguing that higher education affirmative action programs do no favor to minority applicants. Heriot offers evidence that putting minority kids with soft high school credentials into tough science classes with a bunch of super-prepared white and Asian students only guarantees the minority kids will drop out of science and look for an easier curriculum.
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Her example is the kid who drops physics and switches to social science. I kept expecting her to come up with cases where kids actually switch to journalism, but I guess it’s never quite that bad.
She does allow for a kind of catching up. But her evidence is of minority kids who attend less competitive institutions with student peers not quite so far ahead of them, don’t get crushed right out of the box, get up and running and then later successfully attend the most competitive institutions for subsequent chapters in their education. I might have to see a list with names and phone numbers.
I know my own kid really flourished in the diverse atmosphere at UT, but he had already gone through diversity hazing in high school. I am a firm believer that diversity makes white people smarter or at least less dumb. But I have to admit I was troubled when reading Heriot’s piece by the possibility that some affirmative action policies may actually be callous toward the long-range effects they may have on the lives of minority students.
Anyway, I’m thrilled that UT is about to be tee’d up again, because UT is always a good story. You may remember, they fought Hall forever and unsuccessfully in the end by arguing that complying with his requests for information would be just too much work. In my business, you’ve just got to hope something like this new Fisher case will serve up more great lines.