Counting Justices

WASHINGTON -- Twenty-five years passed between the decisions of the U.S. Supreme Court in the Bakke and Grutter cases. Both rulings upheld the right of colleges to consider race and ethnicity in admissions, but only in certain circumstances (and a companion case with Grutter rejected the use of race in other circumstances). Now, only nine years after the latter rulings, the Supreme Court is returning to the issue of affirmative action in higher education. To defenders of affirmative action, that's not a good sign.

Critics of affirmative action rushed to praise the court for returning to the issue. And they shared a variety of scenarios in which the court could restrict or bar the consideration of race and ethnicity by colleges in the admissions process. Most observers see three likely votes to back the right of colleges to consider race, four against and one swing vote (Justice Anthony M. Kennedy). Justice Elena Kagan, who worked on the case while U.S. solicitor general (in defense of the consideration of race), has recused herself. (A four-four tie would uphold the lower court's decision, which permits the use of race, but would not have the normal authority of a Supreme Court precedent.)

In this environment, defenders of affirmative action are talking about the arguments they think might carry weight this time around, the critics are talking about patterns that view as favoring their argument -- and some college officials are worried about the state of campus race relations as affirmative action gets heightened attention.

And everyone is trying to guess whether the Supreme Court will rule narrowly on the case before it -- or will more broadly define what is permitted in college admissions when it comes to race.

All sides agree that the stakes are high. "This case presents the court with an opportunity to clarify the boundaries of racial preferences, and perhaps those boundaries are so fuzzy that the court will go all the way to reconsider whether race would be considered at all," said Edward Blum, director of the Project on Fair Representation, which brought the lawsuit that the Supreme Court will now review. Blum said that, even if the Supreme Court doesn't want to bar colleges from any consideration of race, he anticipates a win that could significantly restrict what colleges are permitted to do.

"I think the decision will compel universities to actually try something race-neutral before they consider race," he said. Blum said that most colleges can't show today that they have done so, and so their consideration of race would be legally vulnerable.

Michael A. Olivas, who is director of the Institute of Higher Education Law and Governance at the University of Houston and is a supporter of affirmative action, said that "there was no good reason" for the Supreme Court to take the case. He noted that the Texas policies collectively help all kinds of students and promote diversity. And he added that there is no evidence that consideration of race is excluding anyone from higher education.

"I think that aggrieved whites who bring these cases will not be pleased as long as there is a black or Mexican in college," he said.

The Rev. Jesse Jackson, in an interview with Inside Higher Ed, said that the push against colleges considering race in admissions reflected double standards in American life. "Athleticism can be a factor. Ability to pay can be a factor. Living in a rural area can be a factor. But the only factor they want to dismiss is race," Jackson said. "They don't put the same burden on legacy points, for people whose parents went to college there, but they do on race." He predicted that the debate over affirmative action "could get quite hostile" for minority students and those who support them.

The Case Before the Court

The specific question before the Supreme Court is whether the University of Texas at Austin has the right to consider race and ethnicity in admissions decisions. That right was affirmed by the Supreme Court in the 2003 Grutter ruling, but the plaintiffs argue that Texas is exceeding the right granted by the 2003 decision. The plaintiffs argue that because Texas uses a statewide "10 percent" plan -- in which students in the top 10 percent of their high school classes are automatically admitted to the public college of their choice -- the state’s flagship university can achieve a diverse student body without race-based policies. (Many Texas high schools have enrollments that are overwhelmingly made up of members of particular racial or ethnic groups, so the plan provides a steady stream of black and Latino students to UT Austin.)

The university and other defenders of affirmative action argue that just because a university can achieve some diversity without the consideration of race and admissions does not mean that it may not also consider race and ethnicity to achieve a higher level of diversity.

Blum stressed that the plaintiffs are not focused on undoing Grutter -- and would be happy with a ruling that simply forces colleges to test race-neutral methods first, before considering race or ethnicity in admissions. "It is not necessary to get rid of Grutter, but it is important to put teeth -- sharp teeth -- into the requirement that race-neutral means be tried first."

Many defenders of affirmative action scoffed at the idea that the plaintiffs don't want to overturn Grutter. Olivas called the idea that they would be happy without overturning Grutter "horseshit." And Olivas and others noted that the Supreme Court doesn't tend to take up appeals unless there is a split in appeals court rulings -- which is not the case here.

Some experts disagreed with the idea that colleges could be faced with a scenario like Blum outlined of having to operate race-neutral systems before they could consider race.

Marvin Krislov, president of Oberlin College, was general counsel at the University of Michigan when it successfully defended the consideration of race in Grutter. He said that he views that ruling as requiring consideration of race-neutral alternatives, but that he doesn't believe the requirement is as burdensome as Blum does. "It's important to consider alternatives, but that doesn't mean you have to have a lot of failed experiments at each campus," he said. "You can look at studies and what similar institutions have done," and base decisions on those factors, he said.

Ada Meloy, general counsel for the American Council on Education, said she thought many colleges were abiding by the guidelines issued last year by the Obama administration -- guidelines that generally pave the way for institutions to consider race in admissions. Meloy said that she expected that the ACE would file a brief backing the University of Texas in the case before the Supreme Court. In the past, most higher education leaders who have spoken out about race-based affirmative action have done so in support of the practice. When Inside Higher Ed surveyed admissions directors last year on whether they supported the practice of admitting some minority students whose grades and test scores were lower, on average, than other admitted students, more than 99 percent said that they backed such policies.

Within higher education, however, there are plenty of academics skeptical of the way colleges consider race. The National Association of Scholars was among the groups that on Tuesday released statements urging the Supreme Court to require race-neutral policies. Stephen Balch, chairman of the association, said that his members believe "the only way to usher in true racial equality in America is to end race-based discrimination."

Can Colleges Defend Affirmative Action?

For higher education leaders who want to preserve the right to consider race in admissions, the key vote is that of Justice Kennedy, and it may not be an easy one to win. He voted with the minority in the 2003 Grutter decision. Michelle Adams, a professor at the Cardozo School of Law of Yeshiva University, said that the Texas 10 percent plan sounded to her like the kind of program Kennedy would like -- precisely because it promotes diversity in a race-neutral way.

"What he has a problem with is when individuals are labeled based on race," she said. (That may explain why many of those arguing Tuesday in favor of the consideration of race were focused on the word "holistic," noting that race can be considered among a variety of factors, and need not be the only reason anyone is admitted or rejected.)

Rodney A. Smolla, president of Furman University and author of The Constitution Goes to College: Five Constitutional Ideas That Have Shaped the American University (NYU Press), predicted Tuesday that Kennedy would back only race-neutral diversity efforts, such as the 10 percent plan, and that such a ruling would "dramatically alter admissions in higher education as we know it."

How might college leaders sway Kennedy to back the consideration of race? "The best arguments for those who seek to defend affirmative action, encouraging the Court not to overrule its decisions in the Michigan cases, will be grounded in pragmatism, and the doctrine of stare decisis, which cautions against dramatic overrulings of past precedents in which institutions and individuals have invested settled expectations and arrangements," Smolla said.

"If universities are able to convince the justices that adoption of a color-blind standard for admissions would dramatically impact the quality of the educational experience for all students, and by extension damage the long-term interests of the nation, they may have some chance of persuading the critical swing vote, likely to be Justice Kennedy, that it would be wrong and highly disruptive suddenly to abolish all race-conscious programs in college admissions."

But Smolla said that, given Kennedy's past votes, "even this pragmatic argument will likely be tough sledding."

Krislov, the Oberlin president who was general counsel at Michigan, said that he thought key support for his former university came from outside higher education. Michigan assembled for that case briefs from leaders in many key parts of American society, all making the argument that they depended on colleges to continue to consider race as a tool for educating future leaders.

"One of the things that was important in the Michigan decisions was the outpouring of support from corporate, military, religious and higher education communities in saying how important this value was," he said. "I would expect that the court would hear that again."

The Impact on Students Now

While the Supreme Court's eventual ruling will have an impact on future generations of would-be students, several said that the debate right now could have a negative impact on minority students in higher education today. Critics of affirmative action "will give the impression that the black students are there because they have had an advantage," Jackson said. The reality, he said, is that "they were not there before because they were locked out. They had a disadvantage."

Jackson said that the discussion of affirmative action is part of a broader hostility to black students and to acknowledging the American history of racism. "There's a toxic wind in the environment," he said.

Krislov said that at competitive colleges that consider race in admissions, it is important to remind students that "we only admit students who can do the academic work here," and that considering race doesn't mean anyone without appropriate qualifications is admitted.

Nancy Cantor, chancellor of Syracuse University, frequently speaks about the value of diversity in higher education and was provost at Michigan during the Grutter litigation. She said that there may be overlap between some of the legal arguments to be made by college leaders and the kinds of ideas they should promote on their campuses right now.

"What we all have to think critically about is not only how you create a civil context for discourse, but how do we identify the ways in which people are interdependent rather than operating in a zero-sum context of you vs. me," she said. The hostility in discussing affirmative action comes from the idea that "you can look at anything and say that you took my spots, that I would gotten more if you weren't here."

College leaders can "turn that argument on its head by talking about what I am gaining by being here with you," by talking about the gains for all students from being educated with those who are different from themselves." More than ever, she said, college leaders need to talk about "a compelling interesting in the intellectual richness of the environment created" with diversity. "We have to turn around the zero-sum thinking."

While Cantor said she hoped these arguments would prevail -- in the Supreme Court and in campus debates -- she said that "one has to always be nervous about something that is of paramount importance as this is." She added: "I see this as genuinely critical to our future. We're at a critical turning point for our country to evaluate whether we can really bring the fastest-growing talent pool to college."

But Blum said that the specifics of the Texas case show that colleges use diversity goals to go beyond what the Supreme Court has permitted. "It is deeply troubling that UT has justified its racial preference policies based upon the lack of undergraduate classroom diversity," he said. "If allowed to remain a goal, UT and hundreds of other schools will be permitted to racially gerrymander every classroom in order to achieve proportional racial balance. This is gravely wrong."