Legal Standpoint: An Unnerving Moment of Uncertainty in the Evolution of Affirmative Action

By Lawrence White    //    Volume 20,  Number 6   //    November/December 2012

For more than 30 years, the Supreme Court has permitted colleges and universities to take race into account when making admission decisions. In an unbroken line of cases—starting with its 1978 decision in Regents of the University of California v. Bakke and culminating in the celebrated University of Michigan Law School decision, Grutter v. Bollinger, just nine years ago—the Supreme Court laid down ground rules that are today widely understood, legally coherent, and relatively simple to apply.

When admitting students, an institution may take race into account as long as the declared objective is to foster racial diversity and as long as the institution eschews quotas, avoids cutoff scores or academic indices differentiated on the basis of race, does not utilize minority “subcommittees” or other processes that batch applicants on the basis of race, and reexamines the need for affirmative action at regular intervals.

In a handful of states—Michigan, California, and Washington among them—the passage of state referendums barring consideration of race introduces added complexity. But for most higher education institutions, affirmative-action programs have been indisputably lawful for more than a third of a century. Affirmative action generates little confusion. Its benefits are well understood and widely embraced.

The Supreme Court will soon decide a case that could substantially alter affirmative-action law. On its face, Fisher v. University of Texas at Austin differs hardly at all from the 2003 Grutter case. Like the plaintiff in Grutter, Abigail Fisher alleges that her constitutional rights were violated when minority applicants with lower grade-point averages and standardized test scores than hers were offered admission and she was not. In 2011, a federal appeals court upheld the Texas affirmative-action program, holding that the plan complied with standards enunciated in controlling Supreme Court precedent: “It would be difficult,” the lower courted noted, “for UT to construct an admissions policy that more closely resembles the policy approved by the Supreme Court in Grutter.” Fisher was argued before the Supreme Court in October, and a decision is expected as—or shortly after—this issue of Trusteeship goes to press.

While the law of affirmative action has not changed since the Supreme Court’s decision in Grutter nine years ago, the composition of the Supreme Court has. Justice Sandra Day O’Connor, author of the court’s decision in Grutter, retired in 2006. Her replacement, Samuel Alito, is an avowed foe of affirmative action. Three other justices—Antonin Scalia, Clarence Thomas, and Anthony Kennedy—dissented in Grutter and are regarded as firm votes against affirmative action. While Chief Justice John Roberts was not on the court in 2003, he has expressed his aversion to affirmative action in other contexts.

There are, it appears, five likely votes against affirmative action in Fisher. Most Supreme Court observers believe that the court did not accept Fisher for review merely to reiterate legal standards enunciated with clarity in Grutter nine years ago. It is more likely that the anti-affirmative-action majority put the case on the court’s docket specifically to revise or reverse three decades’ worth of well-established affirmative-action jurisprudence.

More than 70 friend-of-the-court briefs—an unusually large number—were filed in Fisher urging the court to uphold Texas’s affirmative-action plan, including briefs from national higher education organizations (AGB among them), research universities, elite liberal arts colleges, civil-rights groups, faculty members, and students. One brief, submitted by Harvard Law School Dean Martha Minow and her Yale Law School counterpart Robert Post, sounded a cautionary note that should resonate with trustees at colleges and universities everywhere. Were decades of affirmative-action law to be jettisoned, the authors wrote, admissions officers “would be forced to implement truncated individualized consideration that [forbids] applicants and recommenders from discussing, and our faculty and staff from considering, important aspects of applicants’ lives, experiences, and goals that happen to relate to race.”

“It is hard to imagine,” concluded Minow and Post, “a less attractive outcome for American higher education.”

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