Conversation Of The Week XXXV: Supreme Court Revisits Race In College Admissions

The U.S. Supreme Court heard oral arguments on Wednesday, Oct. 10, in the first case the Court has taken up in nearly a decade on the use of race in higher education admissions.

The Court was petitioned in February this year to hear Fisher v. University of Texas, which could be a precursor to a shift in affirmative action and how U.S. colleges and universities use the race of student applicants to attain higher diversity on campuses.

The court challenge comes from Abigail Fisher; a white student denied admission to the University of Texas at Austin in 2008. The University automatically admits the top 10 percent of academic performers from state high schools and then considers the race of applicants in admitting the remainder as one of about a dozen additional “filters.” Fisher, who did not finish in the top 10, maintains that the race consideration blocked her admission. The University, backed by civil rights groups such as the NAACP Legal Defense Fund, argues that many of its classes would have few minority students without the additional race consideration. 

The case generated over 92 amicus briefs, one of the highest in Supreme Court history. On August 9, academics from 172 universities and research organizations in 42 states joined in one brief submitted by the Civil Rights Project, which focused on research that indicates without race-conscious admission policies, universities would lose educational diversity which “race-neutral” alternatives can’t achieve.

At a forum held by the American Educational Research Association on September 27, Dr. Gary Orfield, a Professor at UCLA and co-director of The Civil Rights Project, reiterated that the Court should continue to allow race in college admissions because it achieves diversity in ways that class-based affirmative action policies don’t.

Earlier, on September 21, the Brookings Institution hosted a half-day conference that examined, among other research, the harmful effects on students of race-based affirmative action that result in a “mismatch” phenomenon where minority students with weak academic backgrounds struggle in a more competitive university situation and so reportedly do not try as hard.

The Fisher v. University of Texas case is different from when the Court upheld race-conscious admissions in 2003 at the University of Michigan Law School in Grutter v. Bollinger. When Barbara Grutter, a Michigan student with a 3.8 GPA, was denied admission, she alleged her rejection was based on race. The School argued they needed to ensure a "critical mass" of students from minority groups. Conflicting lower court rulings brought the case to the Supreme Court which issued a 5-4 majority ruling, written by then-Justice Sandra Day O'Connor, which noted the Constitution does not prohibit “narrowly tailored use of race in admissions” to further the educational benefits “from a diverse student body."

This concept of a “critical mass” of minority students came under particular scrutiny from conservative justices, including Chief Justice John Roberts and Justice Antonin Scalia, during Wednesday’s hearing, according to the transcript of the oral arguments posted on supremecourt.org.

“What is the critical mass of African-Americans and Hispanics at the university that you are working toward?” Chief Justice Roberts and others repeatedly asked the University of Texas lawyers. The lawyers would not answer with a specific number, presumably because the court has rejected racial “quotas” in the past.

The current Court's decision to revisit race-conscious college admissions nine years later indicates that at least four members of the Court, which now lean more conservative on race matters since Justice O'Connor’s (who was in the audience on Wednesday) retirement in 2006, believe the issue is worth review. O'Connor’s replacement - Justice Samuel A. Alito Jr. - has been openly critical of affirmative action and Justice Anthony Kennedy dissented from the 2003 opinion in the Grutter v. Bollinger case.

By the close of Wednesday’s 1-hour and 19-minute session, it was apparent from the transcript that the Court’s conservative justices seemed to be leaning towards abandoning the 2003 Grutter ruling and striking down the University of Texas’ affirmative action policy, while the liberal members’ sentiments were echoed by Justice Stephen G. Breyer, who asked: “What is it we’re going to say here that wasn’t already said in Grutter?”

Justice Elena Kagan, considered one of the Court's liberals, is sitting-out Fisher v. University of Texas on the grounds that she was the Obama administration's solicitor general when the Justice Department sided with the University of Texas in the lower courts. This means there is a slight possibility of a 4-4 split by the justices in the case, which would leave in place the lower court’s decision in favor of the University.

In a written statement released by the Virginia-based Project on Fair Representation after the hearing, Abigail Fisher said, "My parents always taught me that it is wrong to discriminate. I hope the Supreme Court will decide that all future University of Texas applicants will compete without their race or ethnicity used in the school's admissions process."

A ruling is not expected until next spring or summer.