Twelve years ago, after an epic legal battle over the University of Michigan’s affirmative action admissions policy in its law school and undergraduate school, the Supreme Court upheld the importance of student body diversity for the institution’s educational mission and the need to consider race as a factor in admissions.
The case, Grutter v Bollinger (2003), which also relied on a prior case that dated back to 1978, University of California v Bakke, cited extensive evidence about the importance of a racially and ethnically diverse student body.
However, in 2012 the Supreme Court reopened the issue, with the Fisher v University of Texas case.
Abigail Fisher is a white female applicant who applied to the university in 2008 and was denied admission. She then sued the University of Texas at Austin on the grounds that the university’s race-conscious admissions policy violated the equal protection clause of the Fourteenth Amendment.
Now the case is, once again, back before the Supreme Court (after having been decided, again, in UT-Austin’s favor by a lower court and appealed, again, by Fisher) and will be heard in the 2015-2016 term.
While the case raises questions specific to UT-Austin’s program, it is also possible that the Supreme Court may further limit the use of race in higher education admissions policies for institutions across the nation.
This could be a historic decision, following a term in which the court decided to severely curtail the Voting Rights Act and uphold the constitutionality of a ban on affirmative action in Michigan.
Fisher: Round 1
The Fisher case was expected to be a fundamental decision on affirmative action in universities.
When the court first agreed to hear the case in 2012, the social science community came together, along with the Civil Rights Project at UCLA, to support the race-conscious admissions policy at UT-Austin.
The American Educational Research Association, along with numerous other scholarly organizations, filed a brief summarizing the extensive research demonstrating the educational benefits of a racially diverse student body.
Some 444 social scientists from 172 institutions across the nation submitted a brief for which the lead author of this article served as counsel of record, outlining the evidence demonstrating the limits of so-called race-neutral policies in achieving racial diversity.
In its decision in 2013, the court reaffirmed the important value of educational diversity.
However, a contentious issue was left unresolved: the court did not reach a judgment on the key question of whether there was a nonracial way to achieve the diversity that would make consideration of race unnecessary and therefore illegal under the court’s standards.
Can diversity be achieved by ignoring race?
The decision was subsequently described as a “compromise” in which seven of the eight justices who heard the case agreed to send it back to the lower court for review.
Only Justice Ruth Bader Ginsburg dissented, on the grounds that she would have found the policy constitutional without further review by the lower court.
The decision clarified that the means institutions use to further their interest in diversity required judicial overview, meaning that a judge may not rely on the judgment of the university alone, or defer to its determination, but will require evidence that supports the institution’s decisions.
In doing so, the decision also clarified the importance of considering workable race-neutral alternatives.
If a nonracial approach could promote diversity “about as well and at tolerable administrative expense,” then the university could not consider race directly. This placed a high, but not insurmountable, bar to justify ongoing consideration of race in admissions policies.
The justices asked the lower court, which had appeared to defer to the university’s judgment on the necessity of considering race, to reach its own decision on this issue.
The case went to the Fifth Circuit, which reheard the case and decided, for the second time, that UT-Austin’s admissions policy met the requirements of the court’s clarified standard in Fisher and that of past cases.
Fisher, however, appealed arguing that the Fifth Circuit still had not applied the test correctly.
Fisher: Round 2
In the first round, the lawyers for Abigail Fisher said they were not asking the court to reverse prior cases. What they argued, instead, was that UT Austin’s race-conscious policy was not necessary because other laws in the state, such as the Top Ten Percent Plan, allowed the university to achieve what the Fisher lawyers saw as sufficient racial diversity.
This seems to be the same argument they are presenting in this second round (though that could change as the briefing develops).
Under the plan, students who graduate at the top 10% of their class can be automatically admitted to any campus of the university they wish to attend. The university was able to achieve some level of racial diversity with the plan.
But UT-Austin found that as an alternative to the direct consideration of race in admissions, it was insufficient. The university thus sought to complement the 10% plan with a race-conscious review process.
After the remand in 2013, the Fifth Circuit agreed, but one judge strongly dissented, arguing that the university had failed to provide evidence showing that the 10% plan had not produced sufficient diversity.
This judge also argued that the court had not been sufficiently demanding in examining the university’s justifications: the university’s goals, he said, were vague and the “critical mass” of diversity the university needed not well-defined.
Need to consider race
The concept of critical mass has been at the center of affirmative action litigation efforts since Grutter, and will be central again in this second round in Fisher.
Universities seek to attain it because token representation of a minority group produces problems of extreme isolation and gives little opportunity for other students to interact with minority students.
Opponents challenge it as a goal that is ill-defined and ask for a definition that specifies a number (even though such a number could be considered an illegal quota under the court’s decision in Bakke).
My own analysis shows that the notion of critical mass cannot be reduced to a number, as it depends on a number of contextual factors necessary to obtain the benefits of diversity.
Other research also shows that when race is not considered in a holistic admissions process, as has been the case at institutions in the eight states that ban affirmative action policies, racial and ethnic diversity in the student body declines significantly, especially in highly selective campuses.
These declines have taken place at colleges and universities, in graduate education and across different fields of study, including engineering, natural sciences, social sciences and humanities, and in the important field of medicine.
Need for diversity
In recent years, even with affirmative action in the great majority of states, students of color and low-income students are earning college degrees at lower rates than their peers, deepening the concern of civil rights groups about the Court’s new move.
The court’s decision to hear the case again was also immediately criticized by the Leadership Conference on Civil Rights, representing more than 200 civil rights groups.
As with the first round, one of the justices who had recused herself earlier – Justice Kagan – will not participate, given her prior role as solicitor general when the case was being litigated earlier. With one fewer vote than usual, there is a possibility for a tie, which could leave the lower court decision supporting the University of Texas in place.
The court is likely to hear from many research and higher education organizations who can present evidence via friend-of-the-court briefs.
In the weeks before briefs are to be submitted to the court, researchers working in this field will be discussing the issues, updating research syntheses, and, once again, seeking to offer critical data to aid the court’s deliberations and to inform the broader public not yet aware of the potential consequences of the coming decision.
Our nation’s colleges play a critical role in preparing students for a multiracial society. It is our hope that the court will be guided by the weight of the social science research documenting the myriad educational benefits of diversity and the need to consider race, in a limited fashion, to meet their educational mission.
Liliana M Garces served as counsel of record in a friend-of-the-court brief filed in support of the University of Texas at Austin when the case was before the Court in 2012.
Gary Orfield does not work for, consult to, own shares in or receive funding from any company or organisation that would benefit from this article, and has no relevant affiliations.
Authors: The Conversation