Universities may be forced to roll back affirmative action programs that date to the 1960s, as the U.S. Supreme Court’s Republican-appointed majority weighs how far to limit the use of racial preferences in admissions.
Chief Justice John Roberts and the court’s conservative wing voiced suspicion about preferences yesterday during arguments on the University of Texas’s admissions policies, with Justice Anthony Kennedy in position to dictate how far the court will go. The ruling is scheduled to come by June.
Universities face the prospect of having to find new ways to maintain racially diverse campuses, potentially including class-based affirmative action. With the vast majority of selective universities now considering race, a broad Supreme Court ruling would shake up admissions systems across the U.S.
“Universities need to be able to have this issue settled,” said Lee Bollinger, the president of Columbia University in New York. “They don’t need to feel like every five years or more there’s a new challenge.”
The case is also being closely watched by some of the nation’s biggest companies, including Microsoft Corp. (MSFT:US), Wal-Mart Stores Inc., (WMT:US) and General Electric Co. (GE:US), which are among those that filed a brief supporting Texas saying they rely on universities to prepare a racially diverse workforce.
Only nine years ago the Supreme Court reaffirmed the right of universities to consider race as an admissions factor to achieve campus diversity. The court’s composition has changed since then, most notably through the retirement of Justice Sandra Day O’Connor, who wrote the 5-4 ruling. O’Connor, who was in the audience yesterday, was succeeded by Justice Samuel Alito, a skeptic of racial preferences.
Kennedy, who dissented in that 2003 case and is now the court’s swing vote, suggested yesterday that Texas was going too far. He balked when the university’s lawyer, Gregory Garre, said Texas wanted to have diversity within racial groups, as well as among them.
“What you’re saying is that what counts is race above all,” Kennedy said. “You want underprivileged of a certain race and privileged of a certain race.”
Roberts, who once described racial classifications as “a sordid business,” signaled he would support a broad ruling. He repeatedly voiced discomfort with the idea of identifying students by racial group.
“Should someone who is one-quarter Hispanic check the Hispanic box or some different box?” Roberts asked.
Bert Rein, the lawyer challenging the Texas program on behalf of a rejected white applicant, stopped short of directly asking the court to overturn its 2003 ruling. The logic behind that stance was questioned by Justices Sonia Sotomayor and Stephen Breyer, both Democratic appointees, who said they saw little difference between the Texas policy and the University of Michigan Law School plan upheld in 2003.
The 2003 decision, Grutter v. Bollinger, said colleges and graduate schools could consider race as long as they do so through a broad review of a student’s application and don’t mechanistically award extra points to every minority.
“You don’t want to overrule Grutter,” said Sotomayor, the court’s first Hispanic justice. “You just want to gut it.”
A central question in the Texas case is whether universities can adequately diversify without resorting to racial preferences. The University of Texas admits three- quarters of its freshman class each year on the basis of high school class rank -- the “top 10 percent rule.”
That system, the product of a 1997 state law, ensures a significant number of minorities because it guarantees slots to students at predominantly Hispanic and black schools. The university considers race only in admitting the rest of the class.
The court has multiple options for resolving the case short of barring all affirmative action policies. The justices could say the top-10 program achieves sufficient diversity by itself, making explicit racial preferences unnecessary.
Such a ruling would potentially force other universities to look more closely at race-neutral approaches, including socio- economic affirmative action and the abolition of legacy preferences, which disproportionately favor white students.
Another possibility would be to require a stronger showing from universities as to why their programs are necessary, said Richard Sander, a professor at the UCLA School of Law in Los Angeles who attended the argument. The justices spent part of the hour-plus argument trying to sort out exactly how the Texas preference works.
Lack of Information
“What struck me is how frustrated they were with the lack of information,” said Sander, who filed a brief urging the court to put limits on affirmative action. “Nobody had any idea of how large the preference was.”
The Texas program is being challenged by Abigail Noel Fisher, who applied unsuccessfully to Texas in 2008 and later enrolled at Louisiana State University. A graduate of a Houston- area public high school, she says she was passed over by UT in favor of minority classmates with lower grades and fewer extracurricular activities.
Texas has support in the case from some of the most powerful institutions in the U.S. The 59 companies that signed the brief backing the university also include Gap Inc., Pfizer Inc., Shell Oil Co. and Viacom Inc. (VIAB:US)
Those corporations are in the unusual position of arguing alongside the Obama administration, which has cast affirmative action as a national security issue. The administration says race-conscious admissions, both at the country’s military academies and at universities with Reserve Officers’ Training Corps programs, help ensure a diverse group of officers.
“The core of our interest is in ensuring that the nation’s universities produce graduates who are going to be effective citizens and effective leaders in an increasingly diverse society, and effective competitors in diverse global markets,” said U.S. Solicitor General Donald Verrilli, the administration’s top Supreme Court lawyer.
Texas also drew support from Justice Ruth Bader Ginsburg, as well as Sotomayor and Breyer.
“This program certainly is no more aggressive than the one in Grutter,” Ginsburg said. “It’s, in fact, more modest.”
Alito faulted the Texas program for potentially giving a preference to the minority child of two corporate lawyers. The plan helps Hispanics and blacks “who come from privileged backgrounds,” he said.
Justice Elena Kagan isn’t taking part in the case. She was the Obama administration’s top courtroom lawyer when the administration filed a brief at the appeals court level.
Akin to Quota
In his 2003 dissent, Kennedy said the University of Michigan Law School policy at issue in that case was akin to a quota. At the same time, he said in that case that universities could constitutionally make racial diversity a goal.
Although Kennedy directed the bulk of his questions at the lawyers defending affirmative action yesterday, he also balked at Rein’s criticism of Texas’s policy for adding only a handful of minority students to the school.
“If it’s so few, then what’s the problem?” Kennedy asked.
Kennedy “recognizes the continuing challenges that the nation has in the area of race,” said Debo Adegbile, acting president and director-counsel of the NAACP Legal Defense Fund. At the same time, “he has expressed skepticism in several contexts about what the remedies are to address it.”
Bollinger said he was cheered that Fisher’s lawyer didn’t ask the court yesterday to overturn the Grutter ruling. Bollinger was president of the University of Michigan during much of that case, leading the defense of its affirmative action program.
“I am perhaps more hopeful than I was six months ago,” Bollinger said.
The case is Fisher v. University of Texas at Austin, 11-345.
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