Affirmative Action On The Docket

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.