SC upholds consideration of race in admissions

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The U.S. Supreme Court on Thursday upheld the University of Texas at Austin’s consideration of race and ethnicity in college admissions. Some parts of the decision in the case, Fisher v. University of Texas at Austin, related to features unique to that university.

But other parts of the case will likely apply to admissions and financial aid policies in most of American higher education.

The court ruled that the primary reason that the plaintiff in the case was denied admission to the university was not its consideration of race in admissions, but its “10 percent plan,” in which the top 10 percent of high school graduates are admitted to the public college or university of their choice.

The university does have “a continuing obligation” to meet the legal test of “strict scrutiny” by “periodically reassessing the admission program’s constitutionality, and efficacy, in light of the school’s experience and the data it has gathered since adopting its admissions plan, and by tailoring its approach to ensure that race plays no greater role than is necessary to meet its compelling interests,” the decision says.

At the time that the plaintiff was rejected for admission, however, the decision said, the university had met that burden.

“The record here reveals that the university articulated concrete and precise goals — e.g., ending stereotypes, promoting ‘cross-racial understanding,’ preparing students for ‘an increasingly diverse workforce and society,’ and cultivating leaders with ‘legitimacy in the eyes of the citizenry’ — that mirror the compelling interest this court has approved in prior cases,” said the decision.

The decision was written by Justice Anthony M. Kennedy, generally considered a swing vote on many issues, but who has consistently in the past been skeptical of education policies based on race. He was joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor.

In a dissent, Justice Samuel Alito Jr. — joined by Chief Justice John Roberts and Justice Clarence Thomas — strongly criticized the decision and the University of Texas policies. The dissent calls the university’s arguments “shifting, unpersuasive and, at times, less than candid.”

Justice Elena Kagan, who worked on the case as solicitor general before she joined the Supreme Court, recused herself from the case. When Justice Antonin Scalia died in February, the stage was set for a ruling by only seven justices. Scalia consistently opposed the consideration of race in admissions, so his death may have cleared the way for today’s decision. A four-four tie on the case would still have left the University of Texas policies intact, but would have not have the same power as a precedent on the issue.

A defeat for affirmative action had been widely expected because, with Kagan not voting, only three justices on the court are considered reliable backers of affirmative action.

Michael A. Olivas, the William B. Bates Distinguished Chair in Law at the University of Houston and interim president of the university’s downtown campus, is one of the few legal observers who has consistently predicted that affirmative action would survive the legal challenge brought by Abigail Fisher, a white woman rejected for admission by the University of Texas. Via email on Monday, he said, “It is about time that Fisher accepts that she was inadmissible, and that she lost, once again. No applicant of color would ever get so many bites at the apple, and whites still make up a disproportionate percent of percentage plan admits and discretionary admits at UT.”

Fisher, through her lawyers, released this statement: “I am disappointed that the Supreme Court has ruled that students applying to the University of Texas can be treated differently because of their race or ethnicity. I hope that the nation will one day move beyond affirmative action.”

Leaders of many higher education groups praised the ruling. President Obama spoke about the decision at a White House briefing, saying, “I’m pleased that the Supreme Court upheld the basic notion that diversity is an important value in our society, and that this country should provide a high-quality education to all our young people, regardless of their background. We are not a country that guarantees equal outcomes, but we do strive to provide an equal shot to everybody. And that’s what was upheld today.”

Hillary Clinton, the presumptive Democratic nominee for president, tweeted her approval.

Donald Trump, the presumptive Republican nominee, has not weighed in since the decision was announced.

Today’s ruling is the second time the Supreme Court has considered the Fisher case.

Ruling 7 to 1, the court in 2013 found that the U.S. Court of Appeals for the Fifth Circuit had erred in not applying “strict scrutiny” to the policies of UT Austin, which were challenged by Fisher. She said that her rights were violated by UT Austin’s consideration of race and ethnicity in admissions decisions. Fisher’s lawyers argued that the University of Texas need not consider race because it has found another way to assure diversity in the student body, the 10 percent plan.

Fisher was a high school senior when she first sued UT Austin in 2008. She enrolled at and graduated from Louisiana State University after she was rejected by UT but has continued the legal case over her rejection.

The 2013 ruling essentially raised the bar for colleges in terms of how they had to justify the consideration of race and ethnicity in admissions, but did not bar its use.

In July 2014, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit upheld, 2 to 1, the UT admissions plan. And it is an appeal of that ruling on which the U.S. Supreme Court ruled today.

The majority decision from the appeals court said that just because Texas could get some diversity based on the percentage plan alone does not mean it can’t do more than that. “An emphasis on numbers in a mechanical admissions process is the most pernicious of discriminatory acts because it looks to race alone, treating minority students as fungible commodities that represent a single minority viewpoint,” the judges wrote. “Critical mass, the tipping point of diversity, has no fixed upper bound of universal application, nor is it the minimum threshold at which minority students do not feel isolated or like spokespersons for their race.”

Further, the appeals court said that the University of Texas is correct not to rely solely on the percentage plan, which in turn works because of segregation. The plaintiff’s “claim can proceed only if Texas must accept this weakness of the top 10 percent plan and live with its inability to look beyond class rank and focus upon individuals,” the decision says. “Perversely, to do so would put in place a quota system pretextually race neutral. While the top 10 percent plan boosts minority enrollment by skimming from the tops of Texas high schools, it does so against this backdrop of increasing resegregation in Texas public schools, where over half of Hispanic students and 40 percent of black students attend a school with 90 [to] 100 percent minority enrollment.”

Justice Alito’s dissent argued that the majority decision did not comply with the Supreme Court’s 2013 decision. “At best, the university’s attempted articulations of ‘critical mass’ before this court are subjective, circular or tautological,” the dissent says. “The university explains only that its ‘concept of critical mass is defined by reference to the educational benefits that diversity is designed to produce.’ And, in attempting to address when it is likely to achieve critical mass, the university explains only that it will ‘cease its consideration of race when it determines … that the educational benefits of diversity can be achieved at UT through a race-neutral policy ….’

“These articulations are insufficient. Under the rigors of strict scrutiny, the judiciary must ‘verify that it is necessary for a university to use race to achieve the educational benefits of diversity.’ It is not possible to perform this function when the university’s objective is unknown, unmeasurable or unclear.”

Anxious Presidents

College and university presidents, most of whom backed the University of Texas, have been waiting anxiously for today’s ruling.

Michael V. Drake, president of Ohio State University, was formerly chancellor of the University of California, Irvine, which is banned by the California Constitution from considering race or ethnicity in admissions. He said that the California limits “make the job of creating inclusive higher education that much more difficult.”

He said that Ohio State, like Texas, does consider race and ethnicity, but as one factor among many. “We are looking for the very best, looking at a variety of factors,” he said. “This decision affirms the real value of inclusion in a society like ours — particularly in bringing people from traditionally marginalized groups into our system.”

Thomas Sullivan, a lawyer and legal scholar who is president of the University of Vermont, said he saw the decision as a strong victory for higher education. The court could have ruled strictly on technical grounds that Fisher didn’t have standing, or ordered more hearings. Instead, he said, the court affirmed prior rulings on the value of diversity and also of the appropriate role for colleges in determining (within some limits) their admissions policies.

“This is a big win in terms of saying colleges should have some discretion,” he said. At the same time, he noted that the decision continues to outline requirements (as past decisions have done) for colleges to meet before they use race or ethnicity as a factor in admissions.

Deference to Higher Education

A key part of the first Supreme Court ruling in Fisher was that colleges and universities were, as Sullivan noted, owed some deference on these issues. The earlier ruling limited that deference, and Justice Kennedy cited that limit. “No deference is owed when determining whether the use of race is narrowly tailored to achieve the university’s permissible goals,” he noted.

But while that provision attracted considerable attention last time around, Kennedy stressed areas where colleges should in his opinion receive deference. He quoted from the earlier decision: “The decision to pursue ‘the educational benefits that flow from student body diversity’ … is, in substantial measure, an academic judgment to which some, but not complete, judicial defer­ence is proper.”

In this case, Kennedy also said that it was relevant that the University of Texas was acting under the percentage plan — even if Fisher didn’t challenge that — and that the Texas Legislature imposed the percentage plan as a race-neutral way to promote some level of diversity. Justice Kennedy noted that without Fisher having challenged the plan, there wasn’t a legal record on the plan itself.

“That legislative response, in turn, circumscribed the university’s discretion in crafting its admissions policy,” Kennedy wrote. “These circumstances refute any criticism that the university did not make good-faith efforts to comply with the law.”

While Kennedy strongly defended the constitutionality of the Texas admissions policies, he also stressed the obligations of the university (and presumably other colleges) to constantly evaluate whether they need to consider race and ethnicity to achieve diversity. Colleges, he said, must gather data on various strategies to promote diversity.

“As the university examines this data, it should remain mindful that diversity takes many forms. Formalistic racial classifications may sometimes fail to capture diver­sity in all of its dimensions and, when used in a divisive manner, could undermine the educational benefits the university values,” the decision says. “Through regular evaluation of data and consideration of student experience, the university must tailor its approach in light of changing circumstances, ensuring that race plays no greater role than is necessary to meet its compelling interest.”

The Influence of Race

In his dissent, Justice Alito argued that in fact the university is doing what Kennedy would bar: making race the key factor in admissions.

“Although UT claims that race is but a ‘factor of a factor of a factor of a factor,’ UT acknowledges that ‘race is the only one of [its] holistic factors that appears on the cover of every application,'” Alito wrote, quoting from depositions. “Consideration of race therefore pervades every aspect of UT’s admissions process.”

Further, Alito questions why Latino applicants receive more of an edge in admissions than do Asian-American applicants, who also add to diversity. And he adds that the university’s argument that it needs a “critical mass” of minority students is too vague to be a justification.

Alito argues that the majority is ignoring the earlier Fisher decision in not sufficiently questioning the university’s arguments.

“The majority’s uncritical deference to UT’s self-serving claims blatantly contradicts our deci­sion in the prior iteration of this very case, in which we faulted the Fifth Circuit for improperly ‘deferring to the university’s good faith in its use of racial classifications,'” Alito writes. “As we empha­sized just three years ago, our precedent ‘ma[kes] clear that it is for the courts, not for university administrators, to ensure that’ an admissions process is narrowly tailored.”

It is possible that there will be further challenges to colleges’ consideration of race. Parts of the decision do rest on unique factors at the University of Texas. But many critics and supporters of affirmative action expected this to be the case that might change things dramatically. For now, a legal battle that started in 2008 appears to be over.

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