Supreme Court case on use of race in admissions could be landmark

The University of Texas at Austin admits some students based on a process that includes race as one factor – even though the school is already racially diverse. The Supreme Court will consider whether that process is justified.

Eric Gay/AP
In this Thursday, Sept. 27, photo, students walk through the University of Texas at Austin campus.

The US Supreme Court on Wednesday is set to take up a potential landmark case examining whether a public university may use race as a factor to select new students, even after the university has achieved significant student diversity using race-neutral admissions methods.

The case, Fisher v. University of Texas, embroils the high court in a contentious debate that divides the country and the Supreme Court itself.

The case has prompted the filing of 73 friend-of-the-court briefs from military leaders, major US businesses, 14 states, a group of senators, civil rights groups, education organizations, and a collection of basketball coaches – all urging the justices to uphold the use of race in college admissions.

On the other side, 17 friend-of-the-court briefs were filed by an array of conservative public interest organizations and groups of scholars.

At issue is when it is appropriate to use ethnicity or skin color to boost enrollment by minority students at a highly selective university.

The University of Texas (UT) at Austin uses a race-neutral mechanism to select 75 percent of its entering freshman class. The process yields class-wide minority enrollment of roughly 20 percent, making it among the most diverse of the nation’s elite universities.

Nonetheless, admissions officials also rely on a second selection process to pick the remaining 25 percent of students. That process includes race as a selection criterion among several other factors.

The question in the case is whether under those circumstances the University of Texas’ use of race is justified.

The race-conscious plan is being challenged by a white student, Abigail Fisher, who claims she was denied admission to UT so that African-American and Latino students, who she says were less qualified, could be admitted.

Ms. Fisher’s lawyers argue that the school engaged in government-sponsored racial discrimination in violation of Fisher’s constitutional right to equal protection.

“UT should not be permitted to employ gratuitous racial preferences when a race-neutral policy has resulted in over one-fifth of university entrants being African-American or Hispanic,” Washington lawyer Bert Rein wrote in his brief on behalf of Fisher.

Lawyers for the university deny that school officials engage in racial discrimination. They say consideration of a student’s race is part of a holistic review process that also considers leadership potential, extracurricular activities, work experience, community service, and various components of socioeconomic status.

Consideration of race helps admissions officers understand prospective students in their totality, but race alone does not decide the final outcome, they say.

"Consistent with the holistic and modest way in which race is considered, it is impossible to tell whether an applicant’s race was a tipping factor for any given admit,” Washington lawyer Gregory Garre wrote in his brief on behalf of the university.

Under Supreme Court precedents, officials who use race as a criterion to distribute government benefits (like admission to a highly selective state university) must demonstrate that the use of race is necessary to advance a compelling interest. They must also prove that the means used to achieve that interest were narrowly tailored.

Since the mid-1990s, Texas state law has required the university to admit the top 8 to 10 percent of graduates at each high school in the state. The admissions program was designed to create a race-neutral means to foster a diverse student body at UT.

Ironically, the program relies on racially segregated housing patterns in the state and associated racially segregated community schools to assemble a diverse freshman class.

The program has increased diversity at UT, but school administrators have not been entirely satisfied.

In 2003, the US Supreme Court upheld an affirmative action plan at the University of Michigan Law School. In upholding that plan, the justices ruled 5 to 4 that Michigan’s use of race in admissions was justified in support of the school’s desire to achieve a “critical mass” of minority students that would help broaden and enrich the quality of education at the law school for all students.

Officials at Texas announced a similar goal and set up the secondary, race-conscious admissions process to supplement the race-neutral Top 10 Percent selection process.

Competition for admission within this secondary selection process is intense.

Mr. Garre defended the university’s modest use of race as necessary to achieve a “critical mass” of minority students that would allow all UT students to enjoy the full educational benefits of a diverse student body.

Admissions officials sought to assemble an incoming freshman class that reflected the racial makeup of the Texas population. In addition, officials announced their intention to pursue affirmative action until they were able to achieve racial and ethnic diversity in every class offered at the university.

Mr. Rein attacked the admissions process as an unconstitutional use of race designed to achieve a racial balance among certain favored minority groups in Texas rather than achieve the more ambitious goal of assembling a diverse group of students to boost the quality of education of all students.

“UT’s goal of using race in admissions to mirror the demographics of Texas is nothing more than racial balancing, which is patently unconstitutional,” Rein wrote.

“UT’s goal is not racial diversity to enhance the educational dialogue and exchange of ideas by keeping minority students from feeling isolated or like spokespersons for their race,” he said.

Garre says the university does not seek to achieve a precise match with minority demographics in Texas, rather the statistics are used to determine whether minorities are underrepresented at the school.

“Under-representation at a flagship state university like UT is naturally assessed by some attention to statewide numbers, and there is no constitutional requirement that such a university must blind itself to obvious evidence that particular minority groups are systematically faring poorly in admissions,” Garre wrote in his brief.

The 2003 high court ruling may now be in jeopardy, analysts say.

Two years after the Michigan decision, the key fifth vote in that case, Justice Sandra Day O’Connor, retired. She was replaced by Justice Samuel Alito, who is believed to be a reliable vote against the use of race in college admissions.

The potential lineup of deciding justices is also complicated by the fact that Justice Elena Kagan has recused herself from the case because she worked on the issue while serving as President Obama’s solicitor general.

Lawyers on both sides are directing their arguments toward Justice Anthony Kennedy. In 2003, Justice Kennedy embraced the concept of diversity as providing a compelling interest to justify the use of race in admissions.

But it is unclear whether the Texas admissions plan comports with Kennedy’s view of when the use of race in college admissions crosses the line from acceptable to unconstitutional.

A decision in the case is expected by the end of the term in late June. 

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