Strict Scrutiny in Name Only

“…Much of the attention surrounding the Supreme Court affirmative-action cases has focused on whether respondents Harvard and the University of North Carolina discriminate against Asian-American students, and on petitioner Students for Fair Admissions’ (SFFA) insistence that the Court overturn Grutter v. Bollinger, which allowed university admissions officials to use racial preferences in the first place. But observers should redirect some attention to a mostly forgotten dissent penned by Justice Samuel Alito in Fisher v. University of Texas at Austin. This opinion may inform the majority’s reasoning in the Students for Fair Admissions cases next summer.

In Fisher, the justices examined a challenge to the University of Texas’s undergraduate admissions program. Adopted after the Supreme Court greenlit racial preferences, the program considered race as one of several factors when determining which applicants to admit. Specifically, it included race within a candidate’s “Personal Achievement Index” (PAI)—a metric admissions officials created to measure the candidate’s “potential contribution to the University” and used in conjunction with his or her test scores and academic performance in high school. (The university uses this admissions program alongside the Texas state legislature’s Top 10 Percent Plan, which grants all students in the top 10 percent of their class at a Texas high school automatic admission to any public state college.) Admissions officials justified their use of race by appealing to a 2004 study that the university had conducted of small undergraduate classes—few of which, the study showed, had significant minority enrollment. Officials concluded that the university “lacked a ‘critical mass’ of minority students and that to remedy the deficiency it was necessary to give explicit consideration to race in the undergraduate admissions program.”

Abigail Fisher, who is white, applied for admission to the university and was rejected. She subsequently sued, contending that the school’s reliance on racial preferences in admissions violated the Equal Protection Clause of the Fourteenth Amendment…”