A more conservative Supreme Court puts affirmative action at risk

Michael Doyle

Abigail Noel Fisher lost her shot at attending the University of Texas as an undergraduate, but she appears to have a good chance at changing college admissions nationwide.

In a potentially landmark case, the Supreme Court on Wednesday will take up Fisher’s challenge to race-based admissions policies. Because of personnel changes and the passage of time, the conservative-led court could readily scale back what kind of affirmative action can be permitted.

“I don’t think anyone thinks affirmative action is long for this world,” said Pamela Harris, a visiting professor at the Georgetown University Law Center.

The hour-long oral argument Wednesday morning tests whether giving minority applicants some competitive advantage violates the 14th Amendment’s requirement that states grant “the equal protection of the laws” to all people. Schools have been struggling with this balance between diversity and equal protection, with different outcomes.

The University of Texas, for one, guarantees admission to students from the top 10 percent of their high school classes. For the rest, the school considers race along with other “special circumstances,” such as socioeconomic status.

At the University of North Carolina at Chapel Hill, admissions officers consider race a “plus factor” that can help the school achieve what they call a “critical mass of non-white students.” Both North Carolina and Texas schools say their admissions programs help the educational experience and comply with the Constitution.

“Diversity improves academic outcomes and better prepares students to become the next generation of leaders in an increasingly diverse society,” attorney Gregory Garre wrote on behalf of the University of Texas.

He called race “only one modest factor among many others weighed.”

The Supreme Court last addressed affirmative action in college admissions in 2003, with a 5-4 decision upholding the University of Michigan Law School’s use of race as one factor among many. Justice Sandra Day O’Connor, a Republican appointee, wrote the majority opinion that identified the “educational benefits that flow from a diverse student body,” even as she stressed that “we expect 25 years from now, the use of racial preferences will no longer be necessary.”

The constitutional clock seemed to speed up with O’Connor’s 2005 retirement and her replacement by Justice Samuel Alito. Alito is more skeptical about race in college admissions. Moreover, Justice Elena Kagan, who replaced affirmative action supporter John Paul Stevens in 2010, has recused herself because of her prior role as the Obama administration’s solicitor general.

“It’s quite likely the University of Texas program will be in big trouble,” predicted attorney and prominent Supreme Court blogger Tom Goldstein.

Justices Antonin Scalia, Clarence Thomas and Anthony Kennedy all voted against the Michigan affirmative action plan in 2003. In addition to Alito, the court’s post-2003 members include Chief Justice John Roberts Jr., who has, likewise, criticized race-based decision-making in other school settings.

“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” Roberts declared in a 2007 case involving Seattle-area schools.

Court watchers suggest Roberts may have further strengthened his hand against affirmative action by his role in June in upholding the Obama administration’s health care law. By this tactical reasoning, Harris of the Georgetown law center said that Roberts “built up some credibility and capital” as an independent thinker that he can now draw upon in another controversial case.

The case being heard Wednesday goes back to 2008, when the University of Texas rejected Fisher’s application. Fisher, who is white, had a cumulative 3.59 grade-point average and a combined SAT score of 1180 out of 1600. Because she was not in the top 10 percent of her Steven F. Austin High School class in Sugar Land, Texas, she did not merit automatic acceptance under the university’s admissions program.

Fisher graduated from Louisiana State University in May.

In Supreme Court lingo, race-conscious policies, like those giving ethnic minorities a college admissions advantage, must be “narrowly tailored” to serve a “compelling state interest.” Both standards must be met. Specific racial quotas, for instance, are not narrowly tailored enough to survive legal challenge, even though racial diversity was deemed a compelling state interest in the court’s 2003 ruling.

Conceivably, the court’s conservative justices could retain the idea that college diversity is a compelling interest, but find narrowly that the specific University of Texas policy isn’t the right one. Kennedy, a swing vote, has previously suggested college diversity can be a compelling interest.

Or, more aggressively, the justices could flat-out reverse course from the 2003 University of Michigan decision and reject diversity as a compelling state concern altogether.

The Obama administration sides with the University of Texas, as does a group of 37 private liberal arts colleges, including Davidson in North Carolina, Dickinson in Pennsylvania and Pomona in California.

“A decision condemning Texas’s admissions procedures might well be taken, depending on how it was written, to confound and restrict (the private colleges’) effort to assemble diverse student bodies,” attorney Charles S. Sims wrote on behalf of the 37 liberal arts schools.

Fisher v. University of Texas briefs
Fifth Circuit Court of Appeals decision
By Michael Doyle
McClatchy Newspapers