Why the ruling in the Fisher case is a win for Texas

Abigail Fisher, the plaintiff in a discrimination suit against the University of Texas, prepares to speak at a news conference in front of the U.S. Supreme Court.

FILE — Abigail Fisher, the plaintiff in a discrimination suit against the University of Texas, prepares to speak at a news conference in front of the U.S. Supreme Court in Washington, Oct. 10, 2012. On Thursday, the court issued its second ruling in the case, upholding the University of Texas admissions policy.

The late Supreme Court Justice Antonin Scalia is likely rolling over in his grave at the news that his esteemed colleagues decided 4-3 to uphold the University of Texas position in its fight to keep its race-conscious admissions policy.

Had Scalia been alive (or a similarly inclined justice appointed in his place), the chances of a definitive win for UT would have been slim. However, despite Scalia’s and others’ attempts to portray the university’s policy to diversify its student body as a mechanism for letting in unqualified minority students at the expense of qualified white students, the majority of the court on Thursday recognized the inherent value of a diverse university environment and the narrow role race plays in UT’s admissions process. At the same time, the majority acknowledged the great impracticality of creating a college admissions system that relies solely on class rank as has been suggested by Fisher’s lawyers.

READ: Supreme Court upholds UT’s race-conscious admissions in Fisher case

It’s important to note that Fisher v. the University of Texas at Austin was never an affirmative action case in the classical sense.

“Affirmative action”  conjures images of quotas and admissions officials stamping applications until they have enough black and brown faces to fill out their classes. That is a practice that has been deemed unconstitutional in higher education since 1978. Since then, the court has continued to deem constitutional the idea of using race and ethnicity  as one among many factors in admissions, a practice that the UT policy followed when it denied admission to Abigail Fisher and a practice that it continues to use today.

EXPLORE: The history of the UT affirmative action admissions case: Fisher v. University of Texas

This is probably where I should disclose two facts. First, I worked at the university for two years and helped craft its media response to the last Supreme Court decision in the Fisher case in 2013. Second, I have long personally objected to affirmative action as a matter of public policy, which is notorious for causing as much harm as good — casting a pernicious shadow of doubt on the abilities of minority students and professionals and, in some cases, setting up students who have been failed by our public education system for greater failure.

It’s the false suggestion of enduring quotas that feed narratives like the one being pushed by Texas Attorney General Ken Paxton in response to Thursday’s ruling: “The University of Texas is one of the finest educational institutions in the world. The opportunities it offers should be available to all students based on their merit, not the color of their skin.”

Exclusion or acceptance based on race alone is inappropriate in government. But recognition of institutional inequities in access to education and placing a value on a multicultural and heterogeneous enrollment is not only constitutionally valid, but essential to the future of higher education and this state.

As  I found myself at the age of 17 unwillingly defending affirmative action saying in a classroom of mostly white high school seniors: “What do we replace it with? The playing field is far from level.”

The answer is policies like the one used at UT Austin — policies that give value to our differences, whether they be race, socio-economic status, language of origin, family responsibilities, work experience and relative SAT score compared to others at their school. Taken holistically, there is value in having a student body that is heterogeneous and not allow the fact that one semester of having to work to support a family or discrimination that kept a student from being placed in an honors class for a semester would keep a student out of the University of Texas.

Justice Anthony Kennedy wrote:

“A university is in large part defined by those intangible ‘qualities which are incapable of objective measurement but which make for greatness’….Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission.”

Interestingly, Kennedy used the arguments of Fisher’s lawyers against them. Led by her attorney Edward Blum, the team had suggested that if greater numbers of minority students were the university’s aim, then UT should just extend the Top 10 percent rule to the entire student body. (At UT, the top 10 percent is really the top 7 percent, but that’s a whole different discussion.) Of course the upshot for the University of Texas whose enrollment would quickly be 100 percent filled to Top 10 percenters would mean the university would have to decline admission to immensely talented musicians, dancers, athletes, scientists and academics, who in their devotion to a single area of accomplishment would be denied admission if they were in the Top 10.5 percent of their class rather than the Top 10 percent.

Kennedy wrote:

“Class rank is a single metric, and like any single metric, it will capture certain types of people and miss others. This does not imply that students admitted through holistic review are necessarily more capable or more desirable than those admitted through the Top Ten Percent Plan. It merely reflects the fact that privileging one characteristic above all others does not lead to a diverse student body.”

Yes, there are universities like Texas A & M University who say they do not consider race in admissions. They recruit heavily in areas that UT doesn’t not, and they have had some success. However, A & M also is not bursting at the seams with Top 10 percent students and so they have the flexibility to make offers.

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While Justice Samuel A. Alito Jr. may thrash in his dissent, accusing the university of deception and railing that Thursday decision is “affirmative action gone berserk,” the reality is that a university charged with training leaders is not well-served  by using a single measuring stick for access and the value of diversity is greater than simply measuring melanin.

Studies abound about how black and Hispanic children are less likely to be evaluated for gifted and talented programming, more likely to receive harsher punishments for classroom behavior, less likely to be recommended for honors classes, are less likely to participate in summer enrichment programming, are less likely to be steered by teachers to math and science. I could go on.

Abigail Fisher has spent the better part of the last eight years arguing that her spot had essentially been taken by an unqualified minority. In fact, court documents show that one African-American and four Hispanic applicants with academic and personal achievement index scores lower than Fisher’s were accepted into a provisional admission program, but so too were 42 white students with scores equal to or lower than Fisher’s. Meanwhile, 168 black and Hispanic applicants who had scores equal to or higher than Fisher’s were denied admission.

READ: Fisher v. UT, the affirmative action case the Supreme Court can’t quit

The Supreme Court landed on the right side of this case, which should have never gotten this far. Although with the failure to replace Scalia one wonders if this ruling will become an asterisk, or if his fiery, anti-affirmative action rhetoric would have compelled Kennedy to come down on the opposing side.

But I can accept UT’s admissions policy as a constitutional bridge for affirmative action until the day we don’t have to have this conversation about the role of race in educational and economic opportunity. Unfortunately, I fear that will be a while.