Law & Courts

Supreme Court to Revisit Race in College Admissions

By Mark Walsh — February 21, 2012 4 min read
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The U.S. Supreme Court agreed on Tuesday to hear a major new case involving the consideration of race in college admissions, in a dispute being closely watched by the K-12 community.

The justices agreed to hear a challenge to a program in which the University of Texas at Austin considers race as one 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 court’s decision to take up the case comes just two months after President Obama’s administration issued informal legal guidance to colleges and K-12 schools emphasizing ways they could still permissibly take race into account in admissions and assigning students to schools.

The case of Fisher v. University of Texas at Austin (No. 11-345) will be heard next term. Justice Elena Kagan will not participate; she was U.S. solicitor general in 2010 when the Obama administration filed a brief in the case in a lower court.

The university reinstated race consideration 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.

Before then, the state had been barred from using race in admissions by a 1996 decision by the U.S. Court of Appeals for the 5th Circuit known as Hopwood v. Texas. In response to that decision, the state adopted its Top Ten 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 Top Ten Percent law by considering race as a factor in remaining freshman class places at the university. 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 January 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.

“We are satisfied that the university’s decision to reintroduce race-conscious admissions was adequately supported by the ‘serious, good faith consideration’ required by Grutter,” U.S. Circuit Judge Patrick E. Higginbotham said in the main opinion.

Higginbotham 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.”

“Through the Top Ten Percent Law and Grutter-like plan, UT has increased its minority applicant pool in its effort to ensure that it serves as a flagship university for the entire state, not just Texans of certain backgrounds,” Higginbotham said. “Cultivating paths to leadership for underrepresented groups serves both the individual and the public, sustaining an infrastructure of leaders in an increasingly pluralistic society.”

Higginbotham warned, however, that the success of the Top Ten Percent law by itself in boosting minority enrollment at the university threatens to eventually weaken the state’s justifications for the race-conscious program.

“In this dynamic environment, our conclusions should not be taken to mean that UT is immune from its obligation to recalibrate its dual systems of admissions as needed, and we cannot bless the university’s race-conscious admissions program in perpetuity,” Higginbotham said.

The appeal to the Supreme Court came solely from Fisher, who is now a senior at Louisiana State University. Her lawyers argued, among other things, 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 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.

Fisher’s lawyers responded by arguing that the state was using “bluster” to avoid Supreme Court review. The reply brief also argued that the Obama administration’s guidance on race consideration in education further made the case timely for clarifying case law in this area.

In the guidance issued Dec. 2, 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.

Photo: Abigail Fisher

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