Affirmative Action at Risk in Supreme Court Case

WASHINGTON -- The U.S. Supreme Court agreed Monday to review the constitutionality of the consideration of race and ethnicity in college admissions cases. And many legal experts believe the justices are likely to be skeptical of such consideration.

The case involves the admissions practices at the University of Texas at Austin. It is possible that the Supreme Court could rule in a narrow way about UT. But the case also gives the justices, several of whom are dubious of the legality of the consideration of race by schools and colleges, a chance to limit or ban the consideration of race in college admissions. The case will now be heard in the fall, with a decision likely in early 2016. The issues in this case are also likely to be debated in the 2016 presidential race.

As is the norm in cases it agrees to hear, the Supreme Court did not issue any explanation about its decision. But the notification that the justices would take the case confirmed, as expected, that Associate Justice Elena Kagan would recuse herself from consideration of the case. Kagan was solicitor general in the Obama administration before being appointed to the court, and presumably worked on the case in that capacity. With Kagan not voting, only three justices on the court are considered reliable backers of affirmative action.

The Supreme Court's 2013 ruling is in the same case that has now returned to the justices.

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. The case is Fisher v. University of Texas at Austin, in which Abigail Fisher, a white woman rejected for admission by the university, 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. That is the “10 percent plan,” under which those in the top 10 percent of students at Texas high schools are assured admission to the public college or university of their choice.

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 that the U.S. Supreme Court has again agreed to consider.

The majority decision from the appeals court said that just because Texas could get some diversity based on the percent 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 percent 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.”

The 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.”

What the Supreme Court says about these issues could be crucial to colleges nationwide. Many of them cite the idea of a “critical mass” as part of their explanation for a range of policies that consider race and ethnicity.

Another key issue for many colleges other than UT is the question of how much deference to give to colleges generally on matters related to their desire for diverse student bodies. The 2013 Supreme Court ruling said that no deference should be given to colleges just for being colleges as opposed to other kinds of organizations. And that significantly increased the burden for colleges because many courts have said, historically, that they are hesitant to question decisions on such policies as admissions.

The appeal filed by Fisher's lawyers, urging the Supreme Court to take the case, said that the appeals court had not in fact applied the required “strict scrutiny” to the university's actions.

“At every turn, the majority was ‘persuaded’ by UT’s circular legal arguments, post hoc rationalizations for its decision to reintroduce racial preferences and unsupported factual assertions,” the brief says, adding that the Supreme Court “has a special interest in ensuring that courts on remand follow the letter and spirit of [its] mandates …. That institutional interest is triggered here as the Fifth Circuit applied strict scrutiny in name only.”

In its reply brief, the University of Texas said the appeals court had indeed applied the Supreme Court's standards for reviewing the consideration of race in admissions. The Texas brief said Fisher's lawyers are in reality just trying to eliminate the right of colleges to consider race in any circumstance. “As is evident from their desire to eliminate racial preferences in education altogether, the real problem for petitioner and her amici is this court’s decisions … [that] establish that universities may consider race -- when narrowly tailored to their compelling interest in student body diversity.”

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.

Why Supporters of Affirmative Action Are Worried

Generally, Monday's announcement was praised by those who want to limit the way colleges consider race. Fisher issued a statement that said: “I am very grateful that the Supreme Court will once again hear my case. I hope the justices will rule that UT is not allowed to treat undergraduate applicants differently because of their race or ethnicity.”

For its part, the University of Texas projected confidence. Gregory L. Fenves, president of UT Austin, released his own statement: “Our admissions policy is narrowly tailored, constitutional and has been upheld by the courts multiple times. We look forward to making our arguments before the Supreme Court later this year.”

Molly C. Broad, president of the American Council on Education, similarly expressed confidence in a statement: “As they rehear the ‘Fisher’ case, we remain confident that the justices will continue to recognize the importance of diversity and show appropriate deference to the judgments made by the University of Texas, which inform its admissions policies and practices.”

But many legal observers -- including plenty who favor the consideration of race in admissions -- are worried. The Supreme Court historically doesn't take up cases just a few years after a similar case, unless there is a specific desire to change things, or a split has developed among appeals courts. In this case, the case is the same one from just two years ago, and there are no conflicting appeals court rulings.

Another reason for concern of affirmative action supporters is in simply counting justices with various voting records on government policies that involve race. Generally, the conservative wing of the court (Chief Justice John Roberts Jr. and Justices Samuel Alito Jr., Antonin Scalia and Clarence Thomas) has provided a solid four votes against government consideration of race, consistently arguing that such policies aren't needed today. The liberal wing of the court (which, excluding Kagan, includes Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor) has generally been sympathetic to affirmative action.

But while Justice Anthony M. Kennedy is talked about as a swing vote, and has voted with the liberal wing on issues such as same-sex marriage, that is not the case when it comes to race. In 2003, he dissented from then Justice Sandra Day O'Connor's decision upholding the consideration of race by the University of Michigan Law School. In his dissent, Justice Kennedy specifically questioned the idea of seeking a critical mass of minority students. He wrote that, at Michigan's law school, “the concept of critical mass is a delusion used by the law school to mask its attempt to make race an automatic factor in most instances and to achieve numerical goals indistinguishable from quotas.”

Further, a book on Justice Sotomayor's arrival on the court has provided details about the 2013 deliberations on the University of Texas case that year, and suggests that Kennedy was prepared then to write a strong rejection of the university's admissions policies and watered down his opinion to attract more justices in what was reportedly a deeply divided court. Many experts suggest that this suggests Kennedy's vote will be a hard one for the University of Texas and supporters of affirmative action to win.

Tom Sullivan, a lawyer who is also president of the University of Vermont, said he still believes Justice O'Connor got it right, and that “diversity in higher education is a public good.”

But he added that the task for the University of Texas will be difficult. “Given the multiple reviews of this case by the court, the university's plan might well receive less deference than previous rulings," he said.

Rod Smolla, who starts this week as the dean of Widener University Delaware Law School and is author of The Constitution Goes to College, said via email that he would be surprised if Justice Kennedy backed the University of Texas. “The question, in my judgment, is not whether the current principles governing race-conscious admissions will be altered, but rather how much they will be altered. Justice Kennedy is likely to tighten the current principles in a manner less hospitable to affirmative action. This could range anywhere from a complete abolition of race-conscious admissions, to requiring some form of stronger showing that no race-neutral alternatives to achieving more diverse student bodies will suffice. It is unlikely that Justice Kennedy would endorse the current regime of strong deference to the judgment of university officials on these issues.”

Michael A. Olivas, director of the Institute for Higher Education Law and Governance at the University of Houston and author of The Law and Higher Education, is a strong supporter of affirmative action. He said that there was no real reason for the Supreme Court to take the case, and that leaves him concerned. He said that the University of Texas admissions process is “the most scrutinized admissions process in higher education” in the last 20 years. And he said it is largely the same as it was in 2013.

He said that the Supreme Court should not have allowed Fisher, “who has graduated from college and who therefore has no more standing, [to] continue to get a bite at the apple.” That the Supreme Court would take the case is “disconcerting,” he said. “Once the Supreme Court acts, it ought to leave it alone.” Having agreed to another review, Olivas said, Fisher's suit becomes “the case that will not die.”