This Article presents a nuanced view of Fisher v. University of Texas that has largely been ignored in mainstream discourse in the case. In Fisher, Justice Anthony Kennedy cast the deciding vote to uphold the University of Texas (“UT”) race-conscious admissions policy. This was the first time that Justice Kennedy voted to uphold a race-conscious policy, and many commentators have focused on this aspect of his Fisher majority opinion. However, Justice Kennedy also gave a stern forewarning to UT and other universities: in the future, they better have strong data to show that they need to use race-conscious admissions. Kennedy did not hold UT to a strenuous evidentiary burden because the University did not have incentive to collect certain data up to 2008— the year that Plaintiff Abigail Fisher was denied admission. However, he also made it clear that UT and other universities are now on notice and will need meticulous data for future defense of their policies.
Using UT as a model, this Article shows how universities can use data to defend their race-conscious policies and to ensure that they are attaining student body diversity along racial, socioeconomics, and other lines. First, this Article reviews jurisprudence on race-conscious university admissions, all the way up to Justice Kennedy’s forewarning. Second, it evaluates data that UT has gathered since 2008. It considers admission and enrollment rates for UT’s race-neutral Top Ten Percent Law (“TTPL”) and for its race-conscious holistic admissions policy, and it also examines which secondary schools are the top feeders for minority students at UT. This Article argues that UT needs its race-conscious holistic policy because (1) White American students admitted under TTPL enroll at greater rates than Black and Latina/o TTPL admittees; and (2) Those minority students who are admitted via TTPL come from racially homogeneous schools. Part III of the Article then concludes with proposals for UT to defend its race-conscious policies and to improve enrollment and retention rates for minority students. These proposals also provide models for other universities who may face lawsuits against their affirmative action policies.
Shakira Pleasant, Fisher's Forewarning: Using Data to Normalize College Admissions, 21 U. Pa. J. Const. L. 813 (2019)