Law & Courts

Affirmative-Action Ruling Could Complicate Diversity Efforts

By Mark Walsh — June 25, 2013 7 min read
Abigail Fisher, who sued the University of Texas when she was not offered a spot at the university's flagship Austin campus in 2008, is followed by Edward Blum of the Project on Fair Representation, after a news conference at the American Enterprise Institute in Washington on Monday. The U.S. Supreme Court ruling on affirmative action in higher education will have "no impact" on the University of Texas' admissions policy, school president Bill Powers said Monday, noting UT will continue to use race as a factor in some cases.
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The U.S. Supreme Court’s modest decision in a high-profile college affirmative-action case is being welcomed by educators from K-12 through higher education as a reaffirmation of racial diversity as a compelling educational interest.

But even the staunchest foes of race-conscious educational policies, who admit some disappointment that the court did not go further to limit them, saw a glass half full in language that will make it harder for schools and colleges to justify race preferences in the courts.

“We were hoping for more,” said Roger Clegg, the president and general counsel of the Center for Equal Opportunity, a Falls Church, Va., group that joined the opposition to the race-conscious admissions program at the University of Texas at Austin. “I know many of the defenders of racial preferences are claiming a victory of sorts. I don’t buy that.”

But Francisco M. Negrón Jr., the general counsel of the National School Boards Association, said that he and other K-12 advocates were heartened by the decision. “Some commentators have called it a punt. I’m not so sure it is a punt.”

Stricter Scrutiny

The Supreme Court ruled 7-1 yesterday in Fisher v. University of Texas at Austin (Case No. 11-345) 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.

It threw out a ruling by the U.S. Court of Appeals for the 5th Circuit, in New Orleans, that upheld the flagship UT campus’ “holistic review” program, which takes race into account for roughly one-quarter of places in the university’s entering freshman class. The other 75 percent of places are filled by the Top Ten plan—the Texas law that guarantees admission to high school students who finish in the top 10 percent of their graduating classes.

Abigail Fisher, a white applicant from Sugar Land, Texas, who was denied admission to the University of Texas at Austin in 2008, challenged the holistic-review program. The Supreme Court’s decision allows Ms. Fisher and her lawyers to return to the 5th Circuit court to fight the university’s justifications for the program.

Writing for the majority, Justice Anthony M. Kennedy said the 5th Circuit court presumed that the university had acted in good faith and thus the court showed deference to the school. That standard was at odds with the requirement under the 2003 Supreme Court case of Grutter v. Bollinger that says all government racial classifications must be analyzed under the strict-scrutiny standard.

“Strict scrutiny does not permit a court to accept a school’s assertion that its admissions process uses race in a permissible way without a court giving close analysis to the evidence of how the process works in practice,” Justice Kennedy wrote.

Under strict scrutiny, a government racial classification must meet a compelling governmental interest and be narrowly tailored to achieve that interest.

Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas, Stephen G. Breyer, Samuel A. Alito Jr., and Sonia Sotomayor joined Justice Kennedy’s opinion. Justice Elena Kagan did not participate in the case, presumably because she had worked on it while she was U.S. solicitor general early in President Barack Obama’s administration.

“In order for judicial review to be meaningful,” Justice Kennedy continued, “a university must make a showing that its plan is narrowly tailored to achieve the only interest that this court has approved in this context: the benefits of a student-body diversity that encompasses a broad array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.”

Justice Ruth Bader Ginsburg read part of her lone dissent from the bench.

“In my view, the courts below adhered to this court’s path-marking decisions, and there is no need for a second look,” she said. “Like so many educational institutions across the nation, the University of Texas modeled its admissions plan after the law school policy approved in Grutter v. Bollinger and the Harvard plan referenced as exemplary in Justice [Lewis F.] Powell’s opinion in Regents of the University of California v. Bakke.”

Justices Scalia and Thomas filed concurring opinions making clear they would overrule Grutter and outlaw all racial preferences in admissions, but they noted that Ms. Fisher and her lawyers did not seek to go that far.

Justice Thomas’ lengthy and strongly worded concurrence compared defenders of affirmative action with those who sought to justify slavery and racial segregation.

“The worst forms of racial discrimination in this nation have always been accompanied by straight-faced representations that discrimination helped minorities,” Justice Thomas said. “Although cloaked in good intentions, the university’s racial tinkering harms the very people it claims to be helping.”

‘More Work to Do’

Ms. Fisher graduated from Louisiana State University last year, and many advocates argued she had no standing to pursue her case. But the Supreme Court decision ignored that and other procedural questions.

At a news conference here, Ms. Fisher said the court had moved the nation closer to a day when racial preferences were not permitted in college admissions.

“We’ve got more work to do,” she said. “But the court gave us everything we asked for.”

Edward Blum, the founder of the Project on Fair Representation, a Washington group that backed Ms. Fisher’s suit, said in a statement that the court “has established exceptionally high hurdles for the University of Texas and other universities and colleges to overcome if they intend to continue using race preferences in their admissions policies. It is unlikely that most institutions will be able to overcome these hurdles.”

The University of Texas argued that its selectivity has been hindered by the rigidity of the Top Ten plan, and that its use of race is designed to bolster racial diversity in a broad sense, including within minority groups, such as by attracting better-credentialed black and Hispanic students than under the automatic plan.

Bill Powers, the president of UT-Austin, said in a statement that he was encouraged by the Supreme Court’s decision and that the university would continue to defend its policy.

“We remain committed to assembling a student body at the University of Texas at Austin that provides the educational benefits of diversity on campus while respecting the rights of all students and acting within the constitutional framework established by the court,” Powers said.

U.S. Secretary of Education Arne Duncan, who had joined the Obama administration’s brief on the university’s side, said in a statement that the decision “preserves the well-established legal principle that colleges and universities have a compelling interest in achieving the educational benefits that flow from a racially and ethnically diverse student body and can lawfully pursue that interest in their admissions programs.”

Scales of Justice

Many K-12 groups, including the National School Boards Association and Teach For America, along with the higher education community in general, took positions in support of the university.

A joint brief by the College Board, the NSBA, and several other K-12 groups had argued that racial diversity was central to the nation’s goals for educational excellence.

Mr. Negrón, the NSBA general counsel, said he was pleased that Justice Kennedy’s opinion “is coming right out and saying Grutter is still good law and that courts have to be deferential about schools using diversity.”

He said Justice Kennedy’s language on narrow tailoring was in line with his concurrence in the 2007 decision in Parents Involved in Community Schools v. Seattle School District, when the high court sharply curtailed the permissible uses of race in K-12 education but Justice Kennedy outlined several areas in which he thought race would still be permissible.

In both opinions, Mr. Negrón said, Justice Kennedy is saying that “race neutrality should be part of the strict-scrutiny analysis.”

Scott R. Palmer, a managing partner of EducationCounsel, a Washington-based law and consulting firm that advises school districts, colleges, and states on education policy, said the court’s decision was fairly narrow.

“Importantly, the court continued to apply the same basic standard set forth in Grutter: that institutions of higher learning can promote the educational benefits of diversity as a compelling governmental interest,” he said. “At the same time, the court also made clear that under the narrow-tailoring inquiry, it is the court’s role to decide whether the educational institution has provided sufficient evidence.”

“That certainly puts a thumb on the scale of the institutions being responsible for having a basis in evidence” for their race-conscious programs, Mr. Palmer said.

Mr. Clegg of the Center for Equal Opportunity, a longtime opponent of race preferences, said he interpreted the decision as providing an equally mixed bag for K-12 schools.

“On the one hand, the court has left the door open for schools to use racial preferences,” he said. “On the other hand, it has also left the door open to challenges. It’s kind of a swinging door.”

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