A closer look at the majority opinion in Fisher v University of Texas reveals the four justices found no discrimination against Asian Americans in holistic admissions.
By a four to three vote, the justices ruled the University of Texas did not discriminate against Abigail Fisher, a White student who did not rank in the top 10% of her high school class, when it rejected her application.
Writing for the majority, Justice Anthony Kennedy wrote:
Therefore, although admissions officers can consider race as a positive feature of a minority student’s application, there is no dispute that race is but a “factor of a factor of a factor” in the holistic-review calculus. 645 F. Supp. 2d 587, 608 (WD Tex. 2009). Furthermore, consideration of race is contextual and does not operate as a mechanical plus factor for underrepresented minorities. Id.,at 606 (“Plaintiffs cite no evidence to show racial groups other than African Americans and Hispanics are excluded from benefiting from UT’s consideration of race in admissions. As the Defendants point out, the consideration of race, within the full context of the entire application, may be beneficial to any UT Austin applicant—including Whites and Asian Americans”); see also Brief for Asian American Legal Defense and Education Fund et al. as Amici Curiae 12 (the contention that the University discriminates against Asian Americans is “entirely unsupported by evidence in the record or empirical data”). There is also no dispute, however, that race, when considered in conjunction with other aspects of an applicant’s background, can alter an applicant’s PAS score. Thus, race, in this indirect fashion, considered with all of the other factors that make up an applicant’s AI and PAI scores, can make a difference to whether an application is accepted or rejected.
The decision is a blow to Asian Americans, mostly groups representing first generation Chinese Americans, who contend Asian Americans have been rejected and less qualified Blacks, Hispanics and Whites have taken their spots.
It’s also a blow to a lawsuit filed by Students for Fair Admissions which has actively courted Asian American groups to its side.
Students for Fair Admissions filed a discrimination case against both Harvard and the University of North Carolina-Chapel Hill which is very similar to the Fisher case.
“At Harvard, we strive to foster a diverse campus community that prepares our students to thrive as citizens and as leaders in an increasingly connected world and global economy,” Harvard University President Drew G. Faust said. “We are pleased that today’s Supreme Court’s ruling in Fisher v. the University of Texas has upheld this integral value.”
Law professor Laurence H. Tribe took it one step further.
In the Harvard Crimson he called the decision in Fisher “favorable to what Harvard has tried to do over the years to overcome racial stereotypes.” He went on to say the lawsuit by Students for Fair Admissions is “overwhelmingly likely to fail.”
However, don’t expect those who contend Asian Americans are discriminated against to go away.
They might be cheered by the dissenting opinion written by Justice Samuel Alito.
It pointed to a study showing that African American, Hispanic, and Asian American students were underrepresented in many classes. See Supp. App. 26a. But UT has never shown that its race-conscious plan actually ameliorates this situation. The University presents no evidence that its admissions officers, in administering the “holistic” component of its plan, make any effort to determine whether an African American, Hispanic, or Asian American student is likely to enroll in classes in which minority students are underrepresented. And although UT’s records should permit it to determine without much difficulty whether holistic admittees are any more likely than students admitted through the Top Ten Percent Law, Tex. Educ. Code Ann. §51.803 (West Cum.Supp. 2015), to enroll in the classes lacking racial or ethnic diversity, UT either has not crunched those numbers or has not revealed what they show. Nor has UT explained why the under representation of Asian American students in many classes justifies its plan, which discriminates against those students.