High Court Showdown Looms on Race-Based Admissions
By Mark Walsh
The U.S. Supreme Court this week dives back into a major case on affirmative action in education, with the possibility of a landmark ruling governing the use of race at the college and K-12 levels.
Or, the result in Fisher v. University of Texas at Austin (Case No 14-981) could be yet another incremental muddle that postpones the judgment day for race-conscious policies.
"The Fisher case has brought surprises at every stage, and one should be prepared for additional surprises," said Edward Blum, the founder of a nonprofit group, the Project on Fair Representation, that is behind the challenge to the race-conscious admissions program at the University of Texas at Austin.
In its first decision in the case, in 2013, the Supreme Court demanded that a federal appeals court apply more-searching scrutiny to the university's plan that uses a "holistic review" for a small proportion of places in each entering class in which an individual's race can sometimes be the make-or-break factor in admissions.
Reliance on Race
Abigail Fisher, a white applicant who was denied admission to UT-Austin in 2008, has appealed the ruling of the U.S. Court of Appeals for the 5th Circuit, in New Orleans, that again upheld the UT-Austin plan.
Fisher, who went on to graduate from Louisiana State University and is now a business analyst in Austin, maintains that she lost out on admissions based on the university's impermissible reliance on race. Among the many arguments that Fisher's lawyers make are that UT has offered shifting rationales for its race-conscious holistic-review program.
"UT has never been clear about precisely why it needs to use racial preferences," they argue. "Strategically vague policies, shifting rationales, and stereotypical assumptions about the quality of high-achieving students in majority-minority or poor high schools should not be permitted to defeat Ms. Fisher's individual right to equal protection."
The challengers contend that UT has been unsatisfied with the state of Texas' race-neutral policy of granting automatic admission to any state campus to those who finish at the top of their high school classes. (That program has been modified with respect to UT-Austin, and currently only those in the top 7 percent of their high schools are guaranteed admission at the flagship campus.)
The challengers characterize the university as seeking "intra-racial diversity" or "diversity within diversity" by using the holistic-review program to admit African-American and Latino students from more-privileged backgrounds than those arriving on its campus from some of the state's poorest communities because of the percentage plan.
UT-Austin, in its Supreme Court brief, says the charge that it is favoring "privileged minorities" is unfounded.
"UT simply seeks minority students with different backgrounds, different experiences, and different perspectives," the university argues. "That is precisely the diversity that this court has held universities have a compelling interest in seeking."
The Fisher case is set for argument on Dec. 9. Like three terms ago, Justice Elena Kagan is recused (presumably because she worked on the case as U.S. solicitor general), and thus eight justices are deciding the case.
Once again, hundreds of think tanks, educational institutions, civil rights groups, business lobbies, and researchers have flooded the high court with friend-of-the-court briefs, the majority of them on UT's side.
A brief filed by the National School Boards Association and six other precollegiate education groups argues that racial diversity programs at the college level affect similar efforts in school districts.
Flood of Briefs
"As with colleges, the educational benefits of diversity in elementary and secondary schools stretch across many realms of student learning and development, including academic achievement, social and interpersonal skills, workplace preparation, and civic engagement. Securing those benefits is a compelling objective for the education system as a whole," says the brief. Meanwhile, a coalition of K-12 groups including Democrats for Education Reform and Students Matter filed a brief, also on UT's side, arguing that "intra-racial diversity" is essential to "dismantling stereotypes and promoting cross-racial understanding and integration."
And at least two briefs have focused on social science research which is said to have a consensus in favor of the benefits of racial diversity in education—one organized by the American Educational Research Association and another on behalf of more than 800 scholars.
"We hope to show the justices the social science research on these issues," said Liliana M. Garces, an assistant professor of higher education at Penn State University's College of Education, who organized the latter brief. "Race operates very implicitly and subconsciously, and when we don't account for it directly, it leads to greater inequities."
Making Fisher's Case
The friend-of-the-court briefs on Fisher's side don't focus on K-12 issues much, but they generally agree on the theme that UT has failed to justify its use of race.
Gail Heriot, a law professor at the University of San Diego and a politically Independent member of the U.S. Civil Rights Commission; and Peter Kirsanow, a Cleveland lawyer who is a Republican member of the commission, argue in a brief that "UT's policy has more to do with indulging the tastes of legislators, accreditors, donors, students, and others for what they superficially regard as social justice than it does with pedagogy."
Heriot, speaking during a Dec. 3 conference call with reporters organized by the Federalist Society, said the Supreme Court's decision to take up the case again "signals it is going to be very careful—I hope very meticulous—"in scrutinizing "race-conscious admissions policies."