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The Power of Now
Tuesday, February 21, 2012
The U.S. Supreme Court announced on Tuesday that it would take up a lawsuit challenging race-conscious admissions at the University of Texas, setting the stage for it to reconsider affirmative-action policies that it had ruled constitutional in 2003, before its composition significantly changed.
The case, Fisher v. University of Texas at Austin, No. 11-345, involves an appeal of a decision last year by the U.S. Court of Appeals for the Fifth Circuit upholding the race-conscious admissions policies of the chief undergraduate program at the University of Texas at Austin. Among the key questions in the case is whether the university was constitutionally precluded from considering applicants' race or ethnicity because it could achieve diversity in a race-neutral manner, through a state law guaranteeing students in the top 10th of their high-school classes admission to any public college in the state.
The Supreme Court's decision on whether to hear the case had been expected by mid-January, but the court repeatedly put off consideration of it, for reasons left unexplained in Tuesday's announcement. Because the court is well into its current term and has filled virtually all of its slots for hearing arguments in other cases, it is not expected to hear the Fisher case until its next term, which begins in October.
When the Supreme Court last considered race-conscious college admissions, in two 2003 cases involving the University of Michigan at Ann Arbor, the lower courts were deeply divided over the legality of such policies. The Supreme Court was deluged with a nearly-unprecedented number of friend-of-the-court briefs, with 88 colleges and more than 50 higher-education associations among those arguing that race-conscious admission policies served a compelling government interest given the educational benefits of diversity on campuses. The Supreme Court ended up accepting the diversity rationale for race-conscious admissions in its 5-to-4 ruling in Grutter v. Bollinger, upholding the Michigan law school's consideration of race as one of several factors used in weighing individual applicants.
In the companion case, Gratz v. Bollinger, the court voted, 6 to 3, to strike down the race-conscious admission policy used by Michigan's chief undergraduate program because a majority of justices believed that the university had put too much emphasis on race in evaluating applicants according to a point system that automatically gave substantial bonuses to members of certain minority groups.
Although the University of Texas case has left the Fifth Circuit bitterly divided, it comes to the Supreme Court at a time when there is no major disagreement among the federal appellate courts on how to interpret the Grutter and Gratz precedents. As the only major challenge to race-conscious admissions policies to have progressed far through the federal courts, it represents perhaps the only opportunity for the Supreme Court to weigh in on the matter for several years to come.
Ada Meloy, general counsel for the American Council on Education, which joined 13 other higher-education associations in filing briefs on behalf of the University of Texas in the Fifth Circuit, predicted on Tuesday that at least as many groups will weigh in on the university's behalf before the Supreme Court. The case could be heard just before the November elections and, regardless, is likely to emerge as a factor in the presidential race. The Obama administration sided with the University of Texas in a brief submitted to the Fifth Circuit, and in December it issued guidance taking an expansive view of the educational benefits of diversity and giving colleges broad leeway in determining whether they need to consider applicants' ethnicity or race to achieve desired levels of diversity.
As is customary, the court's announcement of its decision to hear the case said nothing about its reasons for doing so. The announcement did say, however, that Justice Elena Kagan had taken no part in its consideration of the case or its decision to hear it. Her decision to recuse herself probably stems from her involvement, as solicitor general, in the Obama administration's brief to the Fifth Circuit, a role widely seen as leaving her with a conflict of interest that will preclude her from hearing the case in the fall.
The potential absence of Justice Kagan, a member of the court's liberal wing, from deliberations in the Fisher case is bad news for those hoping the court will reaffirm its own 2003 ruling in Grutter. Since the Grutter decision, the court has swung to be more conservative on matters of race, largely as a result of the retirement of Justice Sandra Day O'Conner, the majority opinion's author in Grutter, and her replacement by Justice Samuel A. Alito Jr., who appears to take a much dimmer view of affirmative-action preferences than she did.
Among the dissenters in Grutter, Justice Anthony M. Kennedy is regarded as a potential swing vote in the Fisher case because he rejected the Michigan law school's policies on fairly narrow grounds, without declaring himself opposed to the diversity rationale for race-conscious admission policies that had been embraced by the majority. With Justice Kagan's absence, however, even if Justice Kennedy votes to uphold Texas' policy, about the best advocates of race-conscious admission policies may be able to hope for is a 4-to-4 court split. Such a tie vote would leave intact the Fifth Circuit's decision but would not be regarded as a Supreme Court decision setting any sort of national legal precedent.
The Supreme Court's decision to take up the Fisher case signals that at least four of its members view the dispute as worthy of judicial review. If Justice Kennedy ends up siding with the four justices regarded as reliably conservative on questions of race—Chief Justice John G. Roberts Jr. and Justices Alito, Antonin Scalia, and Clarence Thomas—the majority could hand down a ruling severely curtailing race-conscious admission policies, or even ending them entirely.
As a former dean of Harvard's law school, Justice Kagan also could have been a voice on the court arguing the perspective of such institutions. Although Chief Justice Roberts had extensive experience as a higher-education lawyer before joining the court, he has viewed race-conscious policies with skepticism, declaring in a 2007 ruling striking down two school-desegregation plans, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."
Potential Battle Lines
In their brief asking the Supreme Court to take up the University of Texas case, lawyers for the plaintiff—Abigail Noel Fisher, a white applicant whom the university rejected in 2008—argued that the Fifth Circuit had erred in relying too heavily on the university's "good faith" assertions that it had tailored its policies to be constitutional and could not achieve sufficient levels of diversity on the campus through race-neutral means.
The petition for a Supreme Court hearing also argued that the Fifth Circuit was mistaken in accepting the university's arguments that its admission policies needed to take into account the state's demographics and that it needed to have racial and ethnic diversity at the classroom level. The brief said pursuing the goal of classroom diversity would require the university to make major changes in the curriculum or adopt constitutionally suspect practices such as making race a dominant consideration in admissions or steering students into certain schools and majors based on their race.
Several friend-of-the-court briefs filed on behalf of Ms. Fisher argued that her case presents the high court with an opportunity to revisit its 2003 rulings and further restrict, or even eliminate, the use of affirmative-action preferences by colleges. Among them, a brief submitted by several organizations that have played a prominent role in fighting race-conscious admission policies, including the American Civil Rights Institute and the Center for Equal Opportunity, argued that the court should take up the case "because universities nationwide have used Grutter as a blueprint for employing racial criteria in university admission policies, instead of treating it as a warning to scale back reliance on race."
On the other side, the University of Texas' brief urging the Supreme Court not to take up the case argued that the case was unripe for Supreme Court consideration because of a lack of disagreement among the circuit courts. It also argued that Ms. Fisher lacked legal standing, partly because she expects to graduate from Louisiana State University this year and cannot plausibly assert an intention to enroll at Texas as an undergraduate.
The University of Texas at Austin on Tuesday issued a statement in which its president, William Powers Jr., said his institution would "vigorously seek a decision affirming the Fifth Circuit's decision and reaffirming the educational benefits of diversity and our narrowly tailored holistic admissions policy." Although Texas' top-10-percent law "drives most of the university's admissions," the statement said, "it is vital for the university to weigh a multitude of factors when making admissions decisions about the balance of students who will make up each entering class." It added: "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 students who will be our nation's future leaders."
The NAACP Legal Defense and Educational Fund issued a statement in which its president, John A. Payton, said "the benefits of diversity are unquestionable" and argued that the Austin campus’s policy "falls squarely within" the guidance offered by the Supreme Court in its Grutter decision.
Michael A. Olivas, a professor of law at the University of Houston, declared that the Supreme Court was taking up the case unnecessarily given the lack of disagreement among the federal circuits. He said white students had fared well under Texas’ 10-percent plan, which had failed to produce levels of diversity on the Austin campus that reflected the racial and ethnic diversity of that state. But, he said, "there is no appeasing aggrieved whites who feel their places have been taken by less qualified minorities."
The Project on Fair Representation, a legal-defense foundation in Washington, D.C., that has helped represent Ms. Fisher, issued a statement in which its director, Edward Blum, called the Supreme Court's decision to take up the case "deeply gratifying" and said, "Abby Fisher and thousands of past applicants have been unfairly denied admission to UT based upon its unconstitutional use of racial preferences." He argued that the university's assertion that it needed to consider applicants' race to promote classroom diversity, if left intact by the court, would allow hundreds of colleges "to racially gerrymander every classroom in order to achieve proportional racial balance," an outcome he called "gravely wrong."
The Center for Equal Opportunity, which had signed onto a friend-of-the-court brief urging the Supreme Court to take the case, issued a statement in which its president, Roger Clegg, said "the justices must keep an eye on what schools are doing" and argued that his group’s research had found that colleges' affirmative-action preferences,instead of being phased out, "in some ways they are getting worse.” Among representatives of other groups that signed onto that brief, Joshua P. Thompson, a lawyer for the Pacific Legal Foundation, said in a statement, “It is time for the court to take another look at this area of law, and stake out a clear position against race-based preferences and discrimination in university admissions.”