Equity & Diversity

K-12 Wrinkle Seen in Affirmative Action Case

By Mark Walsh — February 28, 2012 7 min read
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The U.S. Supreme Court’s decision to review a race-conscious college-admissions program sets the stage for a potentially landmark decision that could further limit or even eliminate permissible ways of promoting racial diversity in both K-12 schools and higher education.

The justices agreed last week to hear a challenge to a program in which the University of Texas at Austin sometimes considers race as a factor for admission after Texas students from the top 10 percent of their high school classes claim undergraduate places guaranteed by a state law.

The new review of college affirmative action comes well before the informal 25-year target date for ending all consideration of race in education suggested by the high court’s last major higher education rulings on the matter, in 2003.

Student Abigail Fisher challenged the University of Texas at Austin on admissions.

And the court’s action comes just two months after President Barack Obama’s administration issued legal guidance to colleges and schools emphasizing ways they could still permissibly take race into account in admissions and in assigning students to schools. That advice was based largely on the 2003 rulings, which involved the University of Michigan, and a 2007 decision that sharply limited the use of race in assigning students to elementary and secondary schools.

Opponents of race-based actions say those decisions are now called into question.

“It would be foolish for any school district to follow the administration’s guidance and re-inject racial consideration into their school system,” said Roger Clegg, the president and general counsel of the Center for Equal Opportunity, a Falls Church, Va., think tank specializing in issues of race and ethnicity. “Why not wait a year and see what the Supreme Court is going to do in this area?”

Defenders of using race as a consideration in some education decisions expressed unease over the court’s action.

“I kind of thought they would reach out and grab this, and they did,” said Maree F. Sneed, a Washington lawyer who works with school districts on desegregation and race-conscious policies. “It’s unfortunate, because the University of Texas has done what it has done very thoughtfully.”

Low-Risk Effort?

The case, Fisher v. University of Texas at Austin (Case No. 11-345), will be heard not in the current term—which is packed with high-profile cases on the 2010 health-care law, immigration enforcement, and free speech—but in the term that begins next October.

Justice Elena Kagan, who joined the court in 2010, will not participate; she was the U.S. solicitor general when the Obama administration filed a brief in the case in a lower court.

That creates a dynamic that may have made it attractive for the court’s four most conservative members to take up the case. Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas, and Samuel A. Alito Jr. have all been firmly against the use of racial preferences by the government. If they can attract the vote of Justice Anthony M. Kennedy, who also is skeptical of race-conscious programs but has more nuanced views on the issue, the conservatives could strike down the Texas plan and perhaps go further by overturning precedents that permit room to maneuver on race.

If the plan wins the backing of Justice Kennedy and the three more-liberal members of the court who will participate in the new case—Justices Ruth Bader Ginsburg, Stephen G. Breyer, and Sonia Sotomayor—the resulting 4-4 tie would mean a lower court’s approval of the Texas plan would be affirmed, but with no national precedent. The liberal bloc would have to attract not only Justice Kennedy but also another justice to end up with a decision that would be favorable toward race-conscious action.

Holistic Review

The University of Texas reinstated consideration of race after the Supreme Court upheld a race-conscious admissions program at the University of Michigan Law School in a 2003 decision known as Grutter v. Bollinger. In that decision, then-Justice Sandra Day O’Connor said the educational benefits of racial diversity were substantial.

A skeptic on race-based action, Justice O’Connor wrote: “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

Before that decision, Texas had been barred from using race in admissions by a 1996 decision of the U.S. Court of Appeals for the 5th Circuit known as Hopwood v. Texas. In response to that decision, the state had adopted its “top 10 percent” law, which was designed to boost racial and socioeconomic diversity at University of Texas campuses without express consideration of those factors in the admissions process.

The post-Grutter program is designed to augment the 10 percent law by sometimes considering race as a factor in the remaining freshman-class places at the university. Under the university’s complex system, race can be a factor in a “holistic” review of a student’s “personal achievement index,” revolving around an essay in which the applicant discusses his or her personal circumstances.

That program was challenged by two white students, Abigail Fisher and Rachel Michalewicz, who were denied admission to the 2008 entering class at the UT main campus in Austin. A federal district court in Austin upheld the race-conscious program in 2009.

In a 2011 decision, a three-judge panel of the New Orleans-based 5th Circuit agreed that the program did not violate the 14th Amendment’s equal-protection clause. The appeals court said the Supreme Court’s 2007 decision in Parents Involved in Community Schools v. Seattle School District, which limited the ways K-12 schools could consider race in assigning students to schools, did not retreat from the 2003 Grutter decision’s emphasis on a “holistic university admissions program.”

By the time of the 2007 decision, Justice Alito had succeeded Justice O’Connor, shifting the Supreme Court to the right on such issues.

The appeal to the Supreme Court came solely from Ms. Fisher, who graduated from high school in Sugar Land, Texas, and who is now a senior at Louisiana State University. Her lawyers argued, among other points, that the case presented a chance for the justices to “clarify or reconsider” Grutter “to restore the integrity of the 14th Amendment’s guarantee of equal protection.”

The state of Texas urged the court not to take up the case, arguing that it presented procedural problems because Ms. Fisher is about to finish her undergraduate education at LSU and does not represent a larger class of denied white applicants. The state suggested the university might be able to make her case moot by refunding her original $100 application fee.

Ms. Fisher’s lawyers responded by arguing that the state was using “bluster” to avoid Supreme Court review, and the justices were evidently unmoved by the state’s procedural arguments.

In a statement released by the Project on Fair Representation, a Washington group backing her suit, Ms. Fisher, said, “I hope the court will decide that all future UT applicants will be allowed to compete for admission without their race or ethnicity being a factor.”

A Brave Face

Ms. Fisher’s lawyers also drew attention to the Obama administration’s guidance on race consideration in education. They argued that the guidance made their appeal a timely vehicle for clarifying case law in this area.

In the guidance, issued in December, the federal departments of Education and Justice jointly issued separate documents for K-12 schools and postsecondary institutions that outline both race-neutral and race-conscious practices that officials say may be used to advance racial diversity and avoid racial isolation. (“Guidance on Race-Based Factors Gets Polarized Response,” Dec. 14, 2011.)

The administration defended the University of Texas policy in a friend-of-the-court brief in the 5th Circuit, and it is likely it would step into the Supreme Court case as well.

Advocates for using race to promote diversity maintained a brave face in response to the Supreme Court’s grant of the Texas case.

Damon Hewitt, the director of the education practice group of the NAACP Legal Defense and Educational Fund, in New York City, said he did not expect the high court to easily sweep away precedents that have struck down specific plans but haven’t completely closed the door on taking race into account in schools and colleges.

“The thing that both Grutter and Parents Involved have in common is that a majority of justices in both cases recognized the importance of racial diversity in education,” Mr. Hewitt said. “It would take something herculean to undo both of those rulings on those points.”

A version of this article appeared in the February 29, 2012 edition of Education Week as K-12 Angle Seen in Affirmative Action Case


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