April 2012
WASHINGTON – The U.S. Supreme Court today agreed to
consider whether the University of Texas at Austin has the right to consider
race and ethnicity in admissions decisions. Those bringing the case hope the
Supreme Court will restrict or even eliminate the right of colleges to consider
race in admissions – a prerogative last affirmed by the Supreme Court in 2003 in
a case involving the University of Michigan’s law school.
In a sign that is likely to worry supporters of
affirmative action (and to cheer critics of the practice), Justice Elena Kagan
announced that she took no part in consideration of the appeal seeking a Supreme
Court review — a likely sign that she will not take any part in the actual
review. Kagan did not announce why, but conservative legal bloggers have been
calling on her to recuse herself because of her work as U.S. solicitor general
filing a brief in support of the University of Texas. If she continues to recuse
herself, a justice thought to be supportive of affirmative action will not be
voting.
The case before the Supreme Court now is over whether the University of 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.
The 2003 ruling affirming the right of colleges to consider race in admissions,
like most decisions upholding affirmative action plans, suggests that the
consideration of race should take place only when other approaches would not
work.
In theory, the Supreme Court could rule only on the question of whether
universities with admissions plans like that of Texas (a relatively small
number) are permitted to also consider race in admissions. But a reopening of
the question of the use of race in admissions decisions could involve broader
questions about whether any consideration of race and ethnicity in admissions is
appropriate. Any such broader consideration makes many college officials very
nervous. The Michigan decision was narrowly decided — 5 to 4. The author of the
2003 decision – Justice Sandra Day O’Connor – has since left the court. And the
court’s decisions since 2003 have shown skepticism about the consideration of
race in education and public policy.
The lawsuit over the Texas policies was rejected by a federal district court
and the U.S. Court of Appeals for the Fifth Circuit.
But the consideration of the case by the appeals panel demonstrates how divided
courts are on these issues. The decision by the court was 3 to 0, but one judge
filed a concurring opinion stating that the appeals panel had to rule as it did,
given the 2003 Supreme Court case on Michigan, but that the Supreme Court ruling
had been incorrect. Then in June, the full appeals court considered whether to
take up the case, and rejected that idea by a vote of 9 to 7.
Several groups that have been critical of the consideration of race in
admissions decisions have filed briefs urging the U.S. Supreme Court to take up
the Texas case. The major higher education associations have not yet weighed in
on the case at the Supreme Court. But a coalition of groups, led by the American
Council on Education, filed a brief with the Fifth Circuit backing the
University of Texas position.
Inside Higher Ed, Feb. 21, 2012.
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