Supreme Court Heard Oral Arguments On Affirmative Action Challenge

Race-Conscious College Admissions Policy Returns To Supreme Court After Being Sent Back To Lower Court Last Year. The Supreme Court heard oral arguments on the constitutionality of affirmative action in college admissions policies on December 9, after previously remanding the case to a lower court last year. The case will examine “a program at the University of Texas that takes race into consideration as one factor for admissions,” though an expansive ruling could impact affirmative action policies at colleges and universities nationwide. From CNN's report on the hearing:

Supreme Court justices appeared divided Wednesday about the future of a program at the University of Texas that takes race into consideration as one factor of admissions.

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Supporters of affirmative action in higher education are fearful that the court might issue a broad ruling in the case that will curtail a public university's ability to consider race in order to produce a more diverse student body.

The case comes at a time when students across the country are showing signs of racial unrest. Protests at the University of Missouri broke out earlier this fall over racial concerns that eventually drew the resignation of the school's chancellor and university system president. At other universities there have been sit-ins and demonstrations.

Eight states currently have banned the use of race in admissions policy all together according to the National Conference of State Legislatures: Arizona, California, Florida, Michigan, New Hampshire, Nebraska, Oklahoma and Washington.

Abigail Fisher, a white woman from Texas, will make her second trip to the Court on the issue. In 2012, the justices heard arguments and then said nothing for eight months. Ultimately, they issued a narrow opinion sending the case back down to a lower court for another look. The short opinion was indicative that the justices are deeply divided on the issue.

The lower court once again ruled in favor of UT and now eight justices (Justice Elena Kagan has recused herself because she dealt with the case in her previous job as solicitor general) will hear the case one more time and are expected to issue a more substantive opinion. [CNN, 12/9/15]

“Dozens Of Higher Education Groups” Urge Court To Preserve Consideration Of Race In College Admissions. Dozens of higher education groups, representing college and university leadership, higher education accreditors, higher education-focused research organizations, and college faculty and admissions staff, have filed amicus briefs supporting the consideration of race in college admissions, Inside Higher Ed reported. The groups focused on the rights of schools to develop their own admissions policies, arguing that a “holistic review” process for prospective students ought to include race:

On Friday, the American Council on Education filed a brief on behalf of itself and 37 other college groups, a who's who of groups that represent presidents, various parts of academe (Educause and the National Collegiate Athletic Association, for example), accreditors (such as the Southern Association of Colleges and Schools), and faculty groups (the American Anthropological Association and the American Association of University Professors).

A similar brief will be filed today on behalf of four groups that are involved in the admissions process: the American Association of Collegiate Registrars and Admissions Officers, the College Board, the Law School Admission Council, and the National Association for College Admission Counseling.

Both the ACE-coordinated brief and the admissions groups' brief focus more on the right of colleges to set their own admissions standards than on issues of race [Inside Higher Ed, 11/2/15]

Conservative Justices Showed “Skepticism” During Arguments. Questioning from Chief Justice John Roberts and Justice Antonin Scalia were widely reported following the conclusion of oral arguments. According to the Associated Press, the justices' questions hinted at “skepticism,” and a readiness to “deal a blow to race as a factor in college admissions”:

Fisher has been out of college since 2012, but the justices' renewed interest in her case appeared to be a sign that the court's conservative majority is poised to cut back, or even end, affirmative action in higher education.

Their skepticism about it was on display during more than 90 minutes in a packed courtroom.

“What unique perspective does a minority student bring to a physics class?” Chief Justice John Roberts asked at one point, challenging a part of Texas' argument that says its program is needed to increase diversity at the classroom level.

Justice Antonin Scalia suggested it's possible that some black students would benefit from being at a “slower-track school,” instead of Texas' flagship campus in Austin, where some are “being pushed ahead in classes that are too fast for them.”

But it was not clear from the arguments whether [Justice Anthony] Kennedy would go as far as his conservative colleagues to deal a blow to race as a factor in college admissions. [Associated Press, 12/9/15]

Media Show Connection Between This Case And Recent Campus Protests

New York Times: "Students' Protests May Play Role" In Supreme Court Case. A December 1 New York Times article reported that recent campus protests centered around racial injustice may impact the Supreme Court's considerations in the Fisher II case. The article explained that recent campus tensions have been woven into amicus briefs from groups on both sides of the case:

The tense atmosphere on campuses may alter the legal dynamic when the case is argued on Dec. 9. “It's quite possible,” said Michael C. Dorf, a law professor at Cornell, “that the way the court frames the discussion will be colored by the justices' views of the campus protests.”

The justices are almost certainly paying close attention to the protests, including those at Princeton, where three of them went to college, and at Yale, where three of them went to law school. At both schools, there have been accusations that protesters, many of them black, have tried to suppress the speech of those who disagree with them. Others welcomed the protests as part of what they called a healthy debate.

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“African-American students are telling us in no uncertain terms why diversity on campus is important,” said Sherrilyn Ifill, the president of the NAACP Legal Defense and Educational Fund Inc., which filed a brief urging the Supreme Court to sustain the University of Texas' race-conscious admissions plan. “They are describing their own marginalization.”

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Others said the protests were not a healthy byproduct of affirmative action, but a consequence of admitting some students with inferior academic qualifications.

“Students who are recruited, because of their race, to colleges where the average entering credentials are significantly higher than their own will find themselves at severe academic disadvantage,” said John C. Eastman, a law professor at Chapman University in Orange, Calif., who submitted a brief on behalf of Asian students opposed to affirmative action. [The New York Times, 12/1/15]

Politico: Consideration Of Campus Protests Could Be “Key Turning Point” In Case. In a December 8 article examining the significance of Justice Kennedy's swing vote in the impending Fisher II case, Politico reported that observers believe a “key turning point” in Fisher II will depend on Kennedy's consideration of recent racial turmoil on campuses, including at the University of Texas (emphasis added):

The case, Fisher v. University of Texas, could impact admissions policies at nearly every college and university, and it's coming before the court at a moment when campuses are awash in racial protests.

Indeed, some observers believe a key turning point in the case will be whether Kennedy, whose same-sex marriage opinions took full note of the nation's changing attitudes about homosexuality, will again be willing to consider evidence that race on campus continues to be a point of division.

“Judges are human and I don't think anyone can fail to recognize that race certainly matters on college campuses across the country today and I don't think that anybody can fail to notice that there is a value in a diversity of perspectives and opinions and experience,” said Peter McDonough, the general counsel at the American Council of Education, which represents college presidents and has filed a brief backing affirmative action.

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In a court brief filed in October, the University of Texas seized upon the renewed racial turmoil, describing how in the wake of the tragic mass shooting at a church in Charleston last summer, students led a movement to get a statue of Confederate President Jefferson Davis removed from an outdoor mall on campus. The university cited that debate as an example why it needs its current admissions policy.

“UT's student body brought many different viewpoints to that debate, and this event is just one of many constant reminders that race remains relevant in Austin, as in America, today,” it said. [Politico, 12/8/15]

Chronicle Of Higher Education: “Sense of Isolation” Fueling Campus Unrest Could Worsen Based On Court Ruling. A December 8 article in the Chronicle of Higher Education titled “The Supreme Court Could Fuel Campus Unrest in Ruling on Race in Admissions” explained the connection between campus protests and the affirmative action case, highlighting how advocates on both sides invoke current events in their arguments (emphasis added):

Black and Hispanic student activists demonstrate outside the U.S. Supreme Court whenever it debates affirmative action in college admissions, but this time around, they are already protesting throughout the nation.

As the court prepares to hear oral arguments on Wednesday in Abigail Noel Fisher v. University of Texas at Austin (No. 14-981), a lawsuit challenging that institution's consideration of race in admitting undergraduates, colleges elsewhere are on edge. They have been rocked by a wave of demonstrations by minority students who complain of feeling unwelcome and isolated on campuses.

At the nearly 70 colleges where such protesters have issued formal lists of demands, the most common include calls for big increases in the share of students and faculty members who are black, Hispanic, or Native American.

A coalition of educators concerned with minority students' access to college warned in a friend-of-the-court brief that the sense of isolation such students are complaining about will only worsen “if race-conscious college-admission processes are terminated too soon.” [The Chronicle of Higher Education, 12/8/15]

Media Cite Research Showing Importance Of Race-Conscious Admissions Policies

FiveThirtyEight: “Banning Affirmative Action Hurts” Black And Hispanic Enrollment. In a comparison of enrollment rates at public colleges across states where affirmative action policies have and have not previously been banned, FiveThirtyEight found that such a ban worsened the representation of black and Hispanic students in public higher education (emphasis added):

Affirmative action policies, which encourage universities to use an applicant's race as an admissions factor in order to increase racial diversity on campus, were never meant to be permanent. In the 2003 Grutter v. Bollinger decision, which upheld affirmative action at the University of Michigan Law School, Justice Sandra Day O'Connor wrote, “The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” But that decision was only 12 years ago, and the data suggests that we're still a long way from having proportional minority representation on large public college campuses.

We can get a glimpse of how these policies affect student bodies by comparing public college enrollment rates among demographic groups in the eight states where affirmative action is banned to the states where it is not. The most recent data available from the U.S. Department of Education and the Census Bureau shows that white students are slightly underrepresented at a majority of public research universities, typically the campuses where affirmative action is under fire, and Asian students are overrepresented at a majority of these campuses. Black and Hispanic students are still vastly underrepresented at these colleges overall, and they fare even worse in states with bans on affirmative action. Black students are underrepresented by at least 20 percent at 79 percent of the country's research universities; only two research universities in states with affirmative action bans have at least the same proportion of black students as the state's college-age population, and one of those, Florida A&M University, is a historically black college or university (HBCU).

Hispanic students are underrepresented by at least 20 percent at 82 percent of the country's public research universities. In states with affirmative action bans, only one school, Florida International University, has at least the same proportion of Hispanic students as the state's college-age population.

Minorities found more representation on college campuses when affirmative action policies were in place. As The New York Times has pointed out, in most states that have banned affirmative action, the gap between the proportion of minority representation on these campuses and the proportion of minorities in states' college-age populations has grown since the bans took effect. [FiveThirtyEight, 12/9/15]

Wash. Post: Univ. Of Michigan Shows Banning Affirmative Action Leads To Fewer Black Students. A December 8 Washington Post article highlighted the University of Michigan's history with race-conscious admissions policies and its role in the Fisher II case. Supreme Court reporter Robert Barnes explained that the state of Michigan's ban on affirmative action policies, following a 2003 Supreme Court decision, has led to lower black student enrollment at the University of Michigan:

“The evidence here is that with the inability to use race or ethnicity at all, our campus has become less diverse,” UM President Mark Schlissel said in an interview. “It certainly impacts the opportunities provided for talented, underrepresented-group students, and it diminishes the ultimate overall quality of the education we provide. It's a lose-lose. It's a huge mistake.”

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As in some other states, the Michigan constitution was amended to forbid the use of race in admission decisions at the state's universities, and the number of minority students on UM's campus has plummeted.

The percentage of black undergraduate students at UM dropped from 7.03 percent in 2006 to a range of 4.41 percent to 4.7 percent for the past five years, the university said in its brief. That means about 700 fewer black students are at the university today than there were in 2006.

And those smaller numbers, the university said, have startling results: only one black female freshman in an engineering class of nearly 750 and three black students among the dental school's 103 first-year professionals. [The Washington Post, 12/8/15]

Inside Higher Ed Op-Ed: Students Who Experienced Diverse Campuses Valued Degrees More. In an opinion piece at Inside Higher Ed, higher education legal expert Terri Taylor -- who co-authored an amicus brief for Fisher II in favor of affirmative action policies -- connected the University of Texas's admissions goal of providing a diverse learning environment to demonstrated student outcomes, citing a recent Gallup-Purdue poll that found students valued their degrees more than twice as much when they had experienced meaningful diversity on campus (emphasis added):

Learning from difference does not happen magically, and it's not enough for students simply to see difference represented among their peers. Students must have meaningful opportunities to interact and learn from each other in the classroom and beyond.

Such learning experiences can be difficult, and the benefits of a changed perspective and opened mind may take years to be realized. But those benefits -- as Justice Sandra Day O'Connor observed when the court considered the matter of race in admissions in 2003's Grutter v. Bollinger -- are “substantial” and “real.” In October, a national Purdue-Gallup study found that students who had interacted regularly with diverse peers in college were 2.2 times more likely to believe that their degree was worth the cost after graduation.

Indeed, from the beginning, UT has claimed achieving the educational benefits of diversity as its “compelling interest” that justifies its limited use of race in admissions -- just as the University of Michigan Law School argued successfully in Grutter. To assess whether those goals were being met, UT looked at various indicators, including not only enrollment trends but also evidence of racial isolation and campus climate (including faculty and student feedback), and other data including how the educational benefits of diversity were experienced in the classroom. [Inside Higher Ed, 12/7/15]

National And Regional Print Media Implore Supreme Court To Uphold College Affirmative Action

Los Angeles Times Editorial Board: Banning Affirmative Action Would “Be Wrong In Itself” And “Would Fray [Race Relations] Further.” In a December 7 editorial, the Los Angeles Times editorial board exhorted the Supreme Court to “get out of the business of micromanaging affirmative action programs, and ... [to] start by rejecting Fisher's appeal.” It warned against ruling that “race-conscious policies are unnecessary to achieve diversity” because “meaningful racial diversity will require some consideration of race in the admissions process”:

The Supreme Court could hold that, because the University of Texas enrolled many minority students through the top 10% program, race-conscious policies are unnecessary to achieve diversity. But that decision not only would be wrong in itself; it would send the message that the court is willing to second-guess the specifics of other affirmative-action programs.

The possibility of perpetual litigation could discourage colleges and universities from taking race into account not only to promote a diverse learning environment but also to compensate for the effects of racial discrimination and educational inequality. Redressing such inequalities is actually the most compelling argument for affirmative action, though not (unfortunately) the one the court has endorsed. Many minority students on college campuses already feel alienated, as recent protests at several institutions demonstrate. Race relations would fray further if universities were to cut back on their commitment to diversity for fear of litigation.

For the foreseeable future, especially at highly competitive universities, meaningful racial diversity will require some consideration of race in the admissions process. Beginning with the Bakke case in 1978, the Supreme Court repeatedly has held that the Constitution does not prevent such good-faith efforts. The court should get out of the business of micromanaging affirmative-action programs, and it can start by rejecting Fisher's appeal. [Los Angeles Times, 12/7/15]

Sacramento Bee Editorial Board: “Justices Should Listen” To Lessons From CA Affirmative Action Ban. In a December 7 editorial, The Sacramento Bee editorial board argued that Supreme Court justices should look to California to understand why the court ought to uphold colleges' consideration of race in admissions policies. The board cited a drastic decline in black student enrollment in the University of California system following the state's ban on the use of affirmative action in college admissions, calling the decision “a mistake” and “a source of embarrassment” that the justices ought to note: 

It has been nearly 20 years since California voters banned affirmative action in college admissions. Campus diversity in the state has never recovered from the chain saw that was Proposition 209.

Black student enrollment at the University of California - never great to begin with - has plummeted since the ban passed, and current levels are downright abysmal. At UC Berkeley, African Americans have fallen from 6.3 percent of freshmen in 1995 to 2.8 percent this year. At UCLA, black students have gone from 7.1 percent to a little over 4 percent of freshmen.

That's 977 black Bruins out of a freshman class of more than 22,500. No wonder the Twitter hashtag #BlackOnCampus has become synonymous in California with “marginalized.”

That collective retreat has been not only a source of embarrassment but an ongoing problem in many ways for the UC system and the diverse state that depends on, and underwrites, its graduates.

Now, with the U.S. Supreme Court preparing to weigh in this week on an affirmative action case out of Texas, California is making sure that this state's lessons won't be lost on the high court.

The justices should listen. Briefs filed by the University of California and by Attorney General Kamala Harris make it clear that practically and socially, dropping race as one factor in college admission here was a mistake. [The Sacramento Bee, 12/7/15]

Houston Chronicle Editorial Board: Race-Conscious Admissions Policy Gives “Leaders Of Tomorrow” “A Shot At Access To The Best Education.” In a December 8 editorial, the Houston Chronicle editorial board supported the consideration of race as a factor in admissions like at the University of Texas, noting that “race conscious admission policies don't just help black and brown students,” but offer better preparation for all students to lead in a diverse world. The board also warned against the wider implications of ruling against the policy, concluding:

Some day we hope race will no longer matter. But that day is not here. Criminal justice provides just one example. The Court will be reviewing Fisher's case against the backdrop of many heated discussions about race all over America that have arisen around the patterns of racial disparity in the use of force by police.

There is no question that a Supreme Court ruling against UT would harm its reasonable efforts to attract and maintain a student body from different backgrounds. It would also have a chilling effect on efforts of all institutions of higher learning to enroll a student body that is diverse.

UT and other institutions of higher learning are in the business of educating our students. It's hard to see how our state or our nation will be able to stay competitive in the world economy without a work force that knows how to work with and respect people from diverse backgrounds. The court should allow UT and other institutions like it to admit the type of students that they need to do their job. [Houston Chronicle, 12/8/15]

Wash. Post Editorial Board: Banning Affirmative Action “Will Leave Universities Without The Tools They Need To Admit And Educate” Diverse Leaders. In a December 8 editorial, The Washington Post editorial board warned the Supreme Court against “revers[ing] their long-standing precedent on affirmative action” because it would “leave universities without the tools they need to admit and educate a generation of leaders who will shape a society still challenged by racial division, discomfort and alienation.” The board noted that “rather than universities approaching the point at which racial disparities and misunderstandings have melted away,” which is one of the main goals of affirmative action policies, “African American students across the country are protesting a persisting sense of isolation and an entrenched bias they perceive on campuses” (emphasis added):

What has happened since Grutter v. Bollinger, the 2003 Supreme Court case that upheld narrowly designed affirmative action programs at public universities? Rather than universities approaching the point at which racial disparities and misunderstandings have melted away, reducing the need for diversity-promoting programs, African American students across the country are protesting a persisting sense of isolation and an entrenched bias they perceive on campuses.

Yet on Wednesday the court will once again consider -- for the third time in a little over a decade -- whether it is time to shut down public university affirmative action programs, scrutinizing the policy at the University of Texas at Austin.

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If the justices reverse their long-standing precedent on affirmative action, they will leave universities without the tools they need to admit and educate a generation of leaders who will shape a society still challenged by racial division, discomfort and alienation. [The Washington Post, 12/8/15]

The Monitor Editorial Board: “Let's Hope” The Justices “Understand The Opportunities That A Diversified Study Body Brings To Our Nation's Future.” In a December 9 editorial, the editorial board of the Texas-based newspaper The Monitor highlighted the importance of institutions of higher learning promoting a diverse student body and explained how a ruling against affirmative action policies would negatively affect the local Hispanic student population:

The education that students receive in colleges and universities is as much about the concepts they are learning as the environment they are learning in.

Their ability to work and process information beside those from different socio-economic backgrounds, ethnicities, races, states and countries help to formulate their interpretation of others, their understanding of others and it hones their leadership skills relative to those who are unlike them.

That is why diversity of a campus student body is crucial to the success of the institution and its students. Because our leaders of tomorrow must understand, appreciate and feel comfortable around everyone in our global market.

It's a simple concept but it is socially complex and, ironically, it's quite divisive.

It is the crux of the argument that the University of Texas at Austin will be making before the U.S. Supreme Court today in Washington, D.C., for the second time, in the case Fisher vs. University of Texas, which again challenges the university's admissions policy that promotes racial diversity. And it is a concept we wholeheartedly support.

Labeled an affirmative action case for years, we believe this case is much more than that. It's about creating opportunities for all students who attend the Austin flagship campus.

The outcome of this case has particular implications for the Rio Grande Valley, where a majority of the university's Hispanic students hail. Should the court rule against UT's admissions policy -- which guarantees admission to the top tier of graduates from each high school in the state (varying from the top 7 percent to top 10 percent) in order to include more minority students -- then it could greatly affect the ability of our students to gain entry into this respected research university.

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Let's hope that history will be well served by the court's ruling and that the justices will open their hearts and minds and understand the opportunities that a diversified study body brings to our nation's future. [The Monitor, 12/9/15]

NY Times Editorial Board: “Decades Of Experience And Evidence” Show The Value Of Affirmative Action. In a December 9 editorial, The New York Times editorial board condemned conservative justices' -- particularly Justice Scalia's -- questioning in the oral arguments as “offensive,” and argued that university admissions policies must be allowed to continue considerations of race in order to address “systemic effects of racism and segregation.” The editorial concluded:

Justice Scalia and the other conservative justices may prefer to ignore the systemic effects of racism and segregation in America, but they do not disappear that easily. The University of Texas, like countless other schools around the country, is already extremely restricted in what it can to counteract those effects. The court should not make the job even harder. [The New York Times, 12/9/15]