Strong Backing for Affirmative Action

April 1, 2010

The Obama administration has filed a brief with a federal appeals court offering strong backing to the University of Texas at Austin over its consideration of race and ethnicity in admissions decisions.

While the administration's position isn't shocking, the language used strongly allies the Obama administration's stance on the high-profile case with that of most higher education associations, which themselves filed briefs defending the Texas affirmative action policy. The Obama administration not only backs the use of affirmative action, but suggests that colleges and universities need leeway in determining how diversity should factor into admissions decisions.

"The university has a compelling interest in attaining the level of student diversity necessary to fulfill its educational mission," the brief says.

It adds: "In view of the importance of diversity in educational institutions, the United States, through the Departments of Education and Justice, supports the efforts of school systems and postsecondary educational institutions that wish to develop admissions policies that endeavor to achieve the educational benefits of diversity in accordance with Grutter." Grutter is the 2003 Supreme Court case that upheld the consideration of race -- under specified conditions -- in public higher education.

The Obama administration brief did note that the Texas policy is designed in a way so that white people could also benefit from the university's interest in admitting a diverse student body. For example, the brief notes that Texas might look favorably at a white applicant who was elected student body president in a predominantly minority high school, or a black applicant who was elected student body president in a predominantly white high school -- because in both cases, the applicant demonstrated the ability to reach across racial lines.

The administration also noted that Texas conducted surveys and studies that identified problems for minority students and the educational experience of all students when an institution lacks a diverse student body.

The case in which the brief was filed was brought on behalf of rejected white applicants to UT-Austin. While the lawyers bringing the case are no fans of Grutter, they argued that Texas failed to meet the tests set out by that decision.

The suit says that since the University of Texas found race-neutral ways to promote diversity in the years prior to Grutter (when the state was covered by an appeals court decision barring the consideration of race in admissions decisions), it didn't meet the legal justifications for considering race. Texas argued -- and a district judge ruled -- that just because the university can achieve some measure of diversity without the consideration of race doesn't mean it can't develop strategies to achieve greater levels of diversity.

Ada Meloy, general counsel of the American Council on Education, said that the Obama administration's brief gives "very clear support" for the affirmative action authority set by the Supreme Court in Grutter.

Edward Blum, director of the Project on Fair Representation, which organized the suit against Texas, said that, given the way the "Department of Justice roster filled in," he was not surprised by the Obama administration's stance.

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