U.S. Supreme Court to Hear Texas Affirmative Action Case

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by Charles Dervarics

The hot-button issue of affirmative action in college admissions is heading back to the U.S. Supreme Court in a case that may have a significant impact on post-secondary institutions.

The court on Tuesday said it would hear a challenge to the University of Texas’ affirmative action policy, adding a new chapter to a dispute that dates back to the 1990s. At issue now is whether the university’s current policy goes beyond a 2003 high court ruling, Grutter v. Bollinger, that permits narrowly focused race-conscious admissions to promote diversity.

Observers were quick to note that the Supreme Court has changed since 2003, with conservatives now holding a majority. In addition, a recent Obama administration appointee, Elena Kagan, is likely to recuse herself from the case because she was involved in it while serving as U.S. solicitor general.

“The 5-4 majority for Grutter no longer exists,” said Richard Kahlenberg, senior fellow at The Century Foundation in Washington, D.C. The swing vote in 2003 was held by Justice Sandra Day O’Connor, who has retired, he noted.

In 2012, Kahlenberg told Diverse, the Supreme Court has a “majority of justices who are fairly skeptical in the use of race in admissions.”

Critics of affirmative action welcomed the court’s decision to study the Texas policy.

“The court is right to take the case, because the justices must keep an eye on what schools are doing,” said Roger Clegg, chief executive officer of the Center for Equal Opportunity, an opponent of affirmative action. “Instead of preferences being phased out, in some ways they are getting worse.”

Ending race-based discrimination is “the only way” to promote racial equality nationally, said Stephen Balch, chairman of the National Association of Scholars, another organization that supports the lawsuit. “There are many race-neutral ways of promoting equal opportunity on our college campuses, and we urge the court to choose these instead.”

But the NAACP Legal Defense Fund, which has supported the Texas policy in friend-of-the-court briefs and oral arguments during lower-court reviews, was adamant that the university is meeting the standard set in 2003. The Fifth Circuit in 2011 upheld the Texas approach, although plaintiffs then appealed that decision to the Supreme Court.

“The benefits of diversity are unquestionable and as the Fifth Circuit recognized, UT Austin’s policy falls squarely within the four corners of the Supreme Court’s landmark 2003 decision in Grutter v. Bollinger,” said John Payton, the fund’s president and director.

He said the educational benefits of diversity represent “a compelling interest” for U.S. colleges and universities.

The most recent court dispute, Fisher v. The University of Texas, began when Abigail Fisher, a White female student, filed suit against the university insisting that its affirmative action policy prevented her from gaining admission in 2008.

But the issue of affirmative action in Texas has been on the national stage dating back to the Hopwood v. Texas case in the 1990s, when the Fifth Circuit ruled that colleges and universities could not use race as a factor in admissions. In response, Texas created a “10-percent plan,” under which any student in the top 10 percent of a high school graduating class could gain admission to public colleges and universities.

After the Grutter ruling, however, the university began using race when assessing students who were not in the top 10 percent of their high school graduating classes. In Grutter, the high court outlined a process in which colleges and universities could use a “holistic” process to review applications, including grades, test scores and race.

UT-Austin continues to use this holistic policy, which is “narrowly tailored to achieve the educational needs of a diverse student body,” said Bill Powers, UT-Austin president.

While the 10-percent policy is the main factor used in admissions, he said, the university needs to consider “a multitude of factors” when making final decisions on applicants.

“We must have the flexibility to consider each applicant’s unique experiences and background so we can provide the best environment in which to educate and train the student who will be our nation’s future leaders,” Powers said.

Despite sentiment on the court to turn back all race-based considerations in admissions, Kahlenberg said he believes the court is unlikely to overrule the nine-year-old Grutter decision. Instead, he sees the court focusing on the use of “economic” affirmative action to help lower-income students better access higher education, with race as a last resort. The likely swing vote on today’s court, Justice Anthony Kennedy, may be sympathetic to this argument, he noted.

Ultimately, Kahlenberg told Diverse, “It’s likely to be a setback, but there may still be a little wiggle room to use race as a last resort.”

Arguments in the case are likely to take place next fall with a ruling likely in 2013.

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