Supreme Court’s College Race Ruling Continues to Spur Debate

By Mark Walsh — July 19, 2013 4 min read
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The U.S. Supreme Court’s June ruling on race in college admissions continues to attract evolving reactions from legal observers, including at a lively panel discussion Friday at the Century Foundation in Washington.

Richard D. Kahlenberg, a senior fellow at the foundation, said the court’s 7-1 decision in Fisher v. University of Texas at Austin was initially “puzzling” and “quite confusing” to many participants in the debate over affirmative action in education. (Video of the event is here.)

Kahlenberg, a longtime advocate of replacing race-based admissions with socioeconomic factors to achieve diversity, said that “after some reflection” since the June 24 decision, he has reached the somewhat paradoxical conclusion that the ruling was “a victory for racial diversity and a defeat for racial preferences.”

In Fisher, the court reaffirmed key precedents that racial diversity is a compelling educational interest, but it gave opponents of affirmative action fresh legal ammunition to continue attacking race-conscious programs. The majority said that a lower court had failed to hold the university’s race-conscious admissions plan to the demanding burden of “strict scrutiny” as articulated in the high court’s landmark decisions on affirmative action in education.

The decision has generally been viewed as a modest result that left for another day the ultimate fate of the use of race in education. (I reported on the ruling here.)

Kahlenberg said that Justice Anthony M. Kennedy, the author of the Fisher opinion, had essentially been able to turn his stringent view of the application of strict scrutiny that he articulated in a dissenting opinion in Grutter v. Bollinger, the 2003 decision that upheld the holistic use of race in admissions at the University of Michigan law school, into the majority view today.

“Now that Justice Kennedy was in the driver’s seat, he was able to write his dissent in Grutter in the majority opinion,” Kahlenberg said.

He suggested that the Fisher decision will ultimately be positive because it continues to promote racial diversity, even if under the terms of the ruling educational institutions will have to demonstrate that they considered race-neutral alternatives before turning to race-conscious programs. Also, Kahlenberg said, the decision will promote social mobility amid low-income families of all races, and it will help the nation move away from some of the “down sides” of using race in admissions.

“Overall, I think a Supreme Court decision that at first seemed odd and confusing actually got it right,” Kahlenberg said.

Jennifer Gratz, an opponent of race-conscious admissions, said that despite the hype over the Fisher case, she never expected the court to issue a more sweeping defeat for the use of race because plaintiff Abigail Fisher and her lawyers did not ask the justices to overrule Grutter.

Race-conscious admissions polices “are on life support” after the Fisher decision, said Gratz, who was the plaintiff who challenged the University of Michigan undergraduate admissions program that had awarded additional points to underrepresented minorities. In a 2003 companion case to Grutter known as Gratz v. Bollinger, the court struck down Michigan’s undergraduate admissions program.

“One day they will be ruled unconstitutional,” added Gratz, who leads the XIV Foundation, a group dedicated to equal treatment under law as guaranteed by the U.S. Constitution’s 14th Amendment.

There was no full-throated defense of race-conscious admissions policies at Friday’s event. But Harvard Law School Professor Lani Guinier did challenge Gratz about what Guinier said were built-in advantages for white applicants in admissions tests that were normed for upper middle class white students, as well as admissions preferences for “legacy” applicants, whose parents or other family members attended a selective college.

Nancy G. McDuff, the associate vice president for admissions and enrollment management at the University of Georgia at Athens, noted that her institution has been race- and gender-neutral in its admissions decision since 2000, both as a response to lawsuits challenging preferences and its own decision.

“We’ve had to look at other factors,” said McDuff. African-American enrollment at Georgia dipped from a high of 12 percent under race-conscious policies to 5 percent within a year or two after the change. Black enrollment is now about 8 percent, she said.

Anthony P. Carnevale, the director of the Center on Education and the Workforce at Georgetown University, said the debate over race-conscious admissions remains vibrant because “in the end, it matters if you go to a selective college.”

Such institutions spend much more per student than open-admission two- and four-year institutions. “Going to college now is the final arbiter of class and income” in the United States, Carnevale said.

The participants agreed that the debate will now be shaped by how lower courts apply the Fisher ruling.

A version of this news article first appeared in The School Law Blog.