Affirmative action in higher education was once again under attack before the Supreme Court Wednesday.
In the past the court has allowed race as one of many factors in college admissions. But as it has grown more conservative, it has moved to reconsider the issue — including a test case from Texas that was before the court today for the second time.
In 1996, the lower courts ruled that the University of Texas could not consider race at all in admissions, and the number of minorities enrolled at the school promptly plummeted by 40 percent. That, in turn, sent the political and educational establishment scrambling. The result was something called the Ten Percent Plan, enacted by the Texas state Legislature in 1997.
It guaranteed a spot at UT for any student graduating in the top 10 percent of his or her public high school class, and because Texas schools are largely segregated by housing patterns, that has ensured a small, but significant minority enrollment. Until 2003, 75 percent of the slots were filled that way, with the other 25 percent filled by combining class rank with other factors, including special skills, economic status and leadership qualities. After 2003, when the Supreme Court reaffirmed the constitutionality of affirmative action plans, UT added race and ethnicity as an additional factor that can be considered.
Enter Abigail Fisher, a white applicant who claimed she was not admitted because of her race.
UT flatly denied that less qualified black students were admitted to UT. It has said that Fisher's grades and standardized test scores were sufficiently low that she would not have been admitted under any circumstances.
The Texas case could well decide the fate of affirmative action not just in Texas, and not just for state schools, but for private colleges and universities across the nation as well.
The court is closely divided. Four conservative justices are adamantly opposed to any consideration of race. A fifth, Justice Anthony Kennedy, is deeply skeptical, but he has said repeatedly that institutions of higher learning have a compelling interest in having a diverse student body. The court's four liberal justices support affirmative action programs, but one of them — perhaps the most knowledgeable member of the court on this subject, former Harvard Law School Dean Elena Kagan — is recused because she participated in the case when she served as solicitor general in the Obama administration.
So the stage was set Wednesday for a battle royal in which Kennedy's vote is likely to be decisive.
Fisher's lawyer, Bert Rein, immediately faced tough questions from Justice Sonia Sotomayor, who has said she was the beneficiary of affirmative action.
Assuming there was a need for more diversity at UT, what was wrong with the way the UT plan used race, she asked.
Rein replied that to comply with earlier Supreme Court rulings, each minority applicant would have to be measured against other applicants.
"My God," said Sotomayor, "that sounds like you're using race more rather than less than this plan does."
Justice Ruth Bader Ginsburg observed that the Ten Percent Plan itself "is so obviously driven by one thing only, and that one thing is race." She added that, "It's totally dependent upon having racially segregated neighborhoods."
Justice Kennedy moved to another subject. You argue, he said, "that UT's goals are insufficiently concrete. ... In your view, what would be a sufficiently concrete criterion or set of criteria to achieve diversity?"
Rein said the school would have to conduct studies to determine whether there is a "critical mass" of minority students that allows for a "vibrant" exchange of views.
But, Chief Justice John Roberts asked, "how do you do that?"
Rein acknowledged that "it's not easy to do," but "it's not our job to do it."
Justice Samuel Alito, a consistent opponent of affirmative action plans, seemed to suggest one measure: Could the university conduct a study measuring classroom diversity?
Kennedy picked up on that point, asking whether, in the absence of any trial on the facts, the court should send the case back to the district court to look at more facts. "It does seem to me," he said, that "we're just arguing the same case. It's as if nothing had happened."
Justice Antonin Scalia, incredulous, noted that it was the university's burden to show that its use of race was neutral. Allowing them to present new facts, Scalia argued, was saying, "Oh, they failed to put it in. Let's give them another chance. ... Let's do a do-over."
The argument continued with Rein, prompted by Roberts, arguing that the number of minority admits under the UT affirmative action program is so small — under 3 percent — that it's not worth the onerous process of considering race.
Justice Stephen Breyer asked Rein when, if ever, in his view race could be a factor in admissions, other than as a tiebreaker between two applicants.
Rein, however, fudged, avoiding an answer. He did the same when Kennedy asked whether there is any evidence of a quota in the UT program.
Representing the university, lawyer Gregory Garre told the justices that there are many reasons the Ten Percent Plan is limiting. It does not apply to private high school students or out-of-state students.
Alito in turn told Garre that he found his argument "troubling," because it assumes that the minorities admitted under the Ten Percent Plan are not leaders, not dynamic, not change agents. "Really, it's based on a terrible stereotyping," said Alito.
"It's exactly the opposite," replied Garre, adding that the university wants those students; it "applauds those students," but it does not assume that all minorities think alike. It wants people from different experiences, different backgrounds, who are going to have different contributions to the class.
Alito again asked whether the university was measuring classroom diversity. "Doubling the enrollment of African-American students, which happened from 2002 to 2008," Garre replied, "is going to increase diversity in the classroom." He concluded that "we've looked at that, and it has."
This increased diversity, Garre argued, satisfied the university's educational goal of bringing unique perspectives to its classrooms. This assertion drew a caustic response from Roberts: "What unique perspective does a minority student bring to a physics class?"
Responding to the chief justice, Garre said that the university is "being hit by both sides." On one hand, it's being asked to prove that it needs more diversity, and when we do that "our opponent seizes on it and says, 'A-ha, that's your objective.' "
Toward the end of the arguments, Scalia asked whether the university's admission of minority students was really beneficial to those students. "There are those who contend that it does not benefit African-Americans to get them into the University of Texas, where they do not do well, as opposed to having them go to a less advanced school ... a slower-track school, where they do well," he said.
Garre shot back that the academic performance of minorities admitted under the affirmative action program at UT was higher than those admitted under the Ten Percent Plan. "Frankly," he added, "the solution to the problems with student body diversity is not to set up a system in which not only are minorities going to separate schools, they're going to inferior schools."
Concluding his arguments, Garre stated that "experience shows ... that now is not the time and this is not the case to roll back student body diversity in America."
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