The Case of Fisher v. University of Texas: Why The Constitutionality of UT’s Admission’s Policy Continues to Be Called Into Question
Concern’s with the Fisher Case on social media, seem to situate themselves on Fisher’s mediocrity. Fisher’s individual case is not the reason we are at the Supreme Court, rather the constitutionality of an admission’s policy is. Let’s keep this in mind.
In 2003, via the decision of the United States Supreme Court in Grutter v. Bollinger, the utilization of racial consideration in admissions policies was ruled to be in full compliance with the Constitution; the decision was reaffirmed in 2013’s ruling on Fisher V. University of Texas, with its decision to return the ruling to the lower courts, and revaluate the policies in terms of strict scrutiny. If such policies could prove themselves to be narrowly tailored, then the courts should rule the policies to pass the test of strict scrutiny enough to adhere to constitutional law, as by mere character the policies represented the compelling state interest of promoting diversity. Thus, the original opinions of both respectively are centralized on the idea that through following a narrowly tailored approach, the admissions process of universities will avoid discrimination based on race, while addressing the role it plays, in determining the admission of prospective students. Such an idea that if narrowly tailoring the policies is effective enough, in making such policies constitutional, remains a discussion as the case of Fisher and University of Texas is reintroduced to the Supreme Court, in 2015. Due to the fact) that constitutionally these policies don’t equally consider all citizens of the State, that the definition of narrowly tailoring in regards to cases concerning racially conscious programs wasn’t comprehensibly established enough in Regents of California v. Bakke (1978), and that the Court has yet to definitively conclude why racial diversity is a compelling state interest, the admissions policy of the University of Texas does indeed violate the 14th amendment.
It is stated in the 14th amendment’s Equal Protection Clause that [1]“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Explicitly the statement in itself discredits the legality of Fisher V. University of Texas, for to give a larger amount of consideration toward a potential student, because of their race, violates the concluding phrase “the equal protection of the law”. By affording a benefit to another potential student of a state funded institution based solely on race, one individual is denied and implicit advantage at no fault of their own, and thus their protection is minimized in comparison to the rest of the those, who do receive such a benefit. The argument against this interpretation is developed, when evaluating the context of the 14th amendment and its purpose. Like the 13th and 15th the 14th amendment was developed and included in our Constitution in order to according to [2]The United States Senate “extend[ed] civil and legal protections to former slaves.” (
Due to this, it has been argued that the 14th amendment is only applicable to those who were once slaves, and all their descendants who remain attempting to merge effectively in society, after America’s long history of enslavement. As the primary concerns of the emancipation acts was to serve as a protector for all slaves and their African American descendants, to utilize the 14th Amendment to discredit affirmative action programs, based on race, such as the one found in Fisher, would discredit the original purpose. This highlights the argument made by President Lyndon Johnson in his Commencement Address at Howard University, which which states that [3]“You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, “you are free to compete with all the others,” and still justly believe that you have been completely fair.” . This contextual analysis of the amendment, fails to address the fact that the actions of the University of Texas in Fisher, still violates the precedents established in the Constitution. Though set in place and established, on behalf of the newly freed slave population, there is no legal evidence that supports the idea that the new amendments were exclusively to be applied to only African Americans. As the Constitution lacks the ability to advocate for one demographic more than another, the idea that the Equal Protection Clause is limited to blacks only, is a baseless analysis.
Furthermore, if the only significance of the Equal Protection clause is to protect the newly freed slaves from being discriminated against, then as with any outdated constitutional concept, an amendment would have been proposed to alter the outdated portion of our Constitution, due to the lengthy time period between the current state of US race relations versus the way they were in. Due to the lack of evidence which supports the idea that the 14th amendment carried a very limited and restrictive purpose which prevented it from being utilized to challenge the legality of programs, such as those at Fisher, the explicit reading of the Constitution must be taken literally here. This being so, it becomes undoubtable that the actions of the University of Texas would be unconstitutional.
On the contrary however, if capable of passing strict scrutiny, the actions of University of Texas can prove that it’s constitutionally complaint. This, however, is not the case for beginning with Regent of California V. Bakke, a conclusive way in which to go about this procedure, has yet to adequately be established. In the case of Grutter v. Bollinger, from which much of the argument of Fisher V. University of Texas stems, states in it syllabus, that it is the interest of the Law school to present a more diverse student body, in full compliance with Bakke. The school seeks to base its admissions process on [4]“Focusing on students’ academic ability coupled with a flexible assessment of their talents, experiences, and potential…”, yet in a few lines of the syllabus afterward there is a confirmation of the significance in pushing assistance for underrepresented racial minorities, in the admissions process. These two statements are contradictory in their interpretation of how the ruling of Bakke deals with how a system should go about narrowly tailoring the inclusion of race, in regards to admission: One statement advocates a more holistic approach to admission, with race as one equal component of that evaluation; the other focusing and promoting the idea that even though the approach will be partly holistic in nature, racial evaluation will maintain a sense of superiority, amongst other components. When referencing the opinion of Bakke in order to conclusively determine which of these statements are true, a problem is discovered, for validity in both arguments can be made. In reference to the first statement, Justice Powell stats in his decision that [5]“the diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics, of which racial or ethnic origin, is but a single, though an important element.” This statement affirms that belief in Grutter that race should play and equal roll, amongst other factor, when determining the admission of an individual, into a University.
If one is to read further down in the opinion, however, Powell states in Bakke that “In such admissions programs, race or ethnic background may be deemed a [6]“plus”” — the magnitude and definition of this plus, however, remains up for debate. Because of so, the statement provides validity to the second claim of the Grutter syllabus that race is a factor that can be superior, to all other considered factors, and still fall within the bound of what it means to be narrowly tailored, as define by Bakke. It may be suggested that when Powell makes the statement that “yet it [racial background] does not insulate the individual from comparison with all other candidates for the available seats” he clarifies that race can be no more significant than other factors; this suggestion though isn’t clear, as race not insulating the individual, could merely mean that it is not used as the sole determining factor. Due to this, both of these contradictory statements found in Grutter regarding Bakke, are valid and thus highlights the fact that Bakke fails to accurately set a precedent, which correctly defines how a college admissions process utilizing race as a factor for admission should be tailored, in order to bypass strict scrutiny. As Bakke is the first recognizable case which attempts to rectify an admissions process encompassing race with the 14th amendment, and being that it does not establish an effective way in which to do this, until an accurate precedent is established by the court to rectify such Bakke and all subsequent cases citing it, including Grutter and Fisher, must be assume unconstitutional until a way to appropriately assure the passing of strict scrutiny, by admissions policies.
Even if a legitimate way as how such a case should be narrowly tailored is established, such a program would still fail to be Constitutionally defendable, as the State has yet to prove why enhancing racial diversity fails under the bracket of a compelling State interest. [7]According to US Legal dictionary, a Compelling State Interest can only be determined after passing the compelling state interest test in which “the government’s interest is balanced against the individual’s constitutional right to be free of law. However, a law will be upheld only if the government’s interest is strong enough”. The State at large has yet to prove how racially diversity, falls within the bracket of such an interest, yet falsely assumes that it is understood. From the works of scholars such as Carl Cohen and John McWhorther, it is evident that this is not the cause, and due to this inability to prove state interest coupled with the explicit violation of the 14th amendment and inability to accurately narrowly tailor the admission process, the Fisher Case remains unconstitutional.
In the case of Bakke, an argument was made on behalf of Regents, that the reason for enacting a form of affirmative action, based upon race, was to increase the likelihood that an array of communities would be equip with a medical professional — — if them were a diverse group of medical students, then in turn, it would in theory result in a more diverse group in an array of communities. This idea, one that equips the government an opportunity to adequately assist various demographics positively, constitutes a compelling state interest. This begins to fail when the focus of racial diversity trumps the other diversity factors. As John McWhorther defines it [8]“…elite universities have come to mean something much different when they speak of diversity: having as many brown faces on campus as possible, regardless of standards” . The desire to achieve a population that is diverse not just racially but ideologically, a student population that an operable community, capable of positively impact on the world at large, has been replaced by an obsession with accumulating the most amount of people, from the most amount of ethnic backgrounds. This process, which lacks empirical data that shows that concentrating on racial diversity, more than other diversity factors, for these reasons does not constitute a compelling state interest.
University of Texas makes the claim that the program insures a more accurate representation of the demographic of Texas, thus the program is valid, in means of State interest. What the University fails to define, however, is how this accurate representation of the Texan demographic will be a benefit on behalf of the state. Merely advocating for racial diversity does not constitute a compelling State interest, if the point of the interest does not exceed beyond racial boundaries.
From immediate view, the concept of the University of Texas’ admissions policy is unconstitutional, yet as with any situation which contests the constitutionality of who or what they are, in order to determine conclusively whether the process is unconstitutional or not, it must be evaluated in the context of strict scrutiny. Due to the inability of Bakke to accurately establish what it means to narrowly tailor a case such as this one and with the inability of racial diversity to accurately, successfully carrying out the Strict Scrutiny test. Because of such, the admissions process must remain unconstitutional until an appropriate judgement can be made, that will allow for the test to be carried out appropriately. Until such, however, as it conflicts with the explicit statement of the Constitution , the admissions policy of the University of Texas , is indeed a violation of the Equal Protection Clause.
[1] U.S. Const. amend. XIV.
[2] “Senate Historical Office.” U.S. Senate:. Accessed November 17, 2015. http://www.senate.gov/artandhistory/history/common/generic/CivilWarAmendments.htm.
[3] Johnson, Lyndon. “To Fulfill These Rights.” Lecture, Commencement, Washington, DC, July 4, 1965.
[4] “GRUTTER V. BOLLINGER.” GRUTTER V. BOLLINGER. April 1, 2003. Accessed November 17, 2015. https://www.law.cornell.edu/supct/html/02-241.ZS.html.
[5] Regents of California V. Bakke, CLAD 1172 (1978)
[6] Regents of California V. Bakke, CLAD 1173 (1978)
[7] “Compelling-State-Interest-Test Law & Legal Definition.” Compelling-State-Interest-Test Law & Legal Definition. Accessed November 17, 2015. http://definitions.uslegal.com/c/compelling-state-interest-test/.
[8] “McWhorter, John. “Real Diversity After Bakke.” New York Sun, April 23, 2003”
