How could Fisher case impact schools like Princeton? General Counsels offer answers

At a gathering of legal experts Tuesday in which panel participants discussed the recent Supreme Court case Fisher v. University of Texas at Austin, one audience member asked a question: “Is race-based affirmative action dead?”

Columbia Law School professor and civil rights attorney Ted Shaw answered that it very well could be.

“Not quite yet, but it’s in the process, and it might be dead soon in higher education depending on the outcome of this case,” Shaw said.

The panel agreed that the Court’s decision could have massive implications for institutions like the University, potentially affecting the way the school determines which prospective students to admit.

The case was brought forward by current Louisiana State University student Abigail Fisher, who claimed she was denied admission from the University of Texas because she is white.

However, according to Peter McDonough, the University's general counsel, what is really at issue is the unusual method the flagship Texas college uses to sift through its applications.

“The issue is the standard, the process that was applied,” McDonough said, contrasting it to the question of Fisher’s admission in itself.

Wendy White, senior vice president and general counsel at the University of Pennsylvania, explained that the University of Texas adopted a two-part admission system after it lost a 1996 affirmative action case in the Texas Court of Appeals. The school automatically accepts all in-state applicants, regardless of race, who rank in the top 10 percent of their individual high school classes; all other applicants are considered separately in a process that does take race into account.

“Abigail Fisher did not make that standard,” White said. “She was not in the top 10 percent.” Thus, race was one of the factors taken into consideration in her admission to the school.

In order for Fisher to win the case, the Court would have to overturn its 2003 decision in Grutter v. Bollinger, which concluded race could be considered — along with other factors, such as geography and social class — in the admission of college students.

White said in that case the Court ruled diversity was “a compelling reason to take race into account” in higher education. However, it also ruled that an admission plan must be “narrowly tailored” so as not to lead to reverse discrimination.

Legal experts did not expect the 2003 decision to be contested as quickly as it has been.

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“It was a big surprise to us that we were not going to live with the rubric of the Grutter case,” White said.

The panel noted the exact outcome of the current case is uncertain. The court could decide to completely overturn its previous decision, or it could merely rule that the University of Texas’s plan was not “narrowly tailored.”

According to Shaw, if the Supreme Court sides with Fisher in the case, the decision would lead to a sea change.

“It will reach Princeton. It will reach private institutions,” Shaw said.

Shaw claimed that if the University of Texas’ policies are deemed discriminatory by the court, the process of using race in admission will be forbidden at all universities under the Civil Rights Act and the 14th Amendment’s Equal Protection Clause.

Alternatively, McDonough said, if the Court rules that the Texas plan is not “narrowly tailored,” the consequences would be less severe.

“That [decision] basically says, look, Texas, you have a very unique fact pattern, but that doesn’t meet our standards,” McDonough said. “But if you were like Harvard, Penn, Princeton and others, and all you were doing was having a holistic review, we’ve already said that’s OK, and that remains OK.’ ”

According to White, a decision like that would be a win for affirmative action programs.

All three panelists were actively in favor of race-based affirmative action and stressed its importance to higher education.

“Should it be a surprise that after almost 400 years of subordination of African Americans that we have structural inequality that is manifested in academic disparity?” Shaw said, adding that a loss in the Fisher case would mean universities have even fewer tools to combat societal inequality.

According to White, the need to put together a diverse class requires the use of race as one among many factors.

“When an admissions officer is putting together a class, you’re looking at all kinds of factors. You’re putting together a team, a class. You need all sorts of diversity,” White said.

If the court strikes down race-based considerations entirely, Shaw speculated that institutions could perhaps look at other factors, such as class, which fall along racial lines anyway. This way, Shaw said, they could continue to foster diversity without explicitly using race as a factor.

White called the possibility of a Fisher victory “an invitation to litigation.” She said it would be impossible for universities to prove they had not used race as a factor in admission, meaning anyone rejected from a school would potentially have the ability to sue on that basis.

The panel discussion was held in the Fields Center on Tuesday night.