The Hidden Question in Fisher
This Term, the Supreme Court will once again consider whether the University of Texas at Austin is illegally discriminating against white and Asian students in its undergraduate admissions program. The case is Fisher v. University of Texas at Austin (“Fisher II”). The same case was before the Court three Terms ago (“Fisher I”), but the Court punted that time; in a 7-1 decision, it sent the case back to the lower courts to apply stricter strict scrutiny. The lower courts again upheld the program, however, and the Supreme Court will have to confront the question head on this time. Most commentators expect the University to lose, and I am no exception. This is, indeed, an easy case. But it is an easy case only because it has been litigated upon on a dubious premise. The more interesting and important question is whether this premise is false. This is what I call the “hidden question” of Fisher, and it is what I will spend most of this essay discussing.
Before I do, however, I want to discuss the unhidden question that is before the Court. It is a question that has been a long time in the making. In 1996, in Hopwood v. Texas, the University was barred by the United States Court of Appeals for the Fifth Circuit from considering race in its admissions decisions because the court thought it violated the Equal Protection Clause of the U.S. Constitution. Predictably, the number of black and Hispanic students admitted to the University declined and the number of white and Asian students in-creased. In response, the state enacted a law to redesign admissions to its undergraduate schools. The new plan is known as the “Texas Ten Percent Plan.” When it was enacted, it guaranteed all Texas residents graduating in the top ten percent of their high school classes—no matter how good the high school—admission to any state university of their choice. (So many Ten Percent Plan students flooded the University of Texas at Austin that the state eventually capped the number of these students the University had to accept at 75% of each entering class. Nonetheless, the Plan is still a near-guarantee of ad-mission to students graduating in the top decile of Texas high schools.)
The purpose behind the Plan was no secret: to restore the number of black and Hispanic students admitted to top Texas universities to what it had been before Hopwood. The legislature believed the Plan would do this because high schools in Texas were (and still are) so segregated by race that the top ten percent of each high school would include a large number of black and Hispanic students. Indeed, the legislature reviewed studies showing that, if it based admissions on class rank to the exclusion of other criteria, the numbers of blacks and Hispanics would bounce back. The predictions quickly came true: the numbers rebounded right where they were before Hopwood as soon as the Plan was implemented.
