Friends of Affirmative Action

August 14, 2012

When the U.S. Supreme Court last issued a ruling on the consideration of race in admissions decisions, Justice Sandra Day O'Connor's decision (which preserved the right to consider race and ethnicity) specifically cited briefs filed by various groups that were not themselves parties to the case. Describing the value of diversity in higher education, Justice O'Connor wrote: "These benefits are not theoretical but real, as major American businesses have made clear that the skills needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints." And she quoted briefs from business groups and military leaders to back up her point.

Justice O'Connor needed every vote she could get for the 5-4 majority opinion she wrote in 2003. Nine years later, defenders of affirmative action are again in need of Supreme Court votes, and may have a tough time. So it's perhaps not surprising that on Monday, the deadline for filing briefs defending the University of Texas at Austin's admissions policy (and perhaps policies at many other colleges and universities that consider race and ethnicity), scholars, colleges and higher education organizations flooded the U.S. Supreme Court with amicus briefs, making their cases for preserving affirmative action under the framework outlined by Justice O'Connor.

The briefs made clear that the establishment of American higher education is solidly behind the University of Texas and the consideration of race in admissions. The American Council on Education filed a brief on behalf of itself and 39 higher ed groups -- organizations as diverse as the Common Application, EDUCAUSE and the National Collegiate Athletic Association. The Association of American Medical Colleges submitted a brief on behalf of itself as well as colleges that educate osteopathic physicians, nurses, veterinary doctors, dentists and physician assistants.

Some of the briefs brought together colleges that noted their similarities (liberal arts colleges and Roman Catholic colleges, for example). The eight Ivy League universities (plus some other research universities) joined in a brief. One group of 36 colleges and universities wrote that it was filing a brief even though the institutions were in many ways quite different (public and private, urban and rural, historically black and largely white).

Among the scholarly groups filing were the American Association for the Advancement of Science, the American Educational Research Association, the American Sociological Association, the American Statistical Association, the Association for the Study of Higher Education, the Law and Society Association, the Linguistic Society of America, and the National Academy of Engineering. Separate briefs were filed by social science researchers, empirical social scientists and experimental psychologists, among others.

Not all of those filing were within higher education. The Obama administration filed a brief backing the University of Texas. So did a group of U.S. senators, and a number of states (including California, where voters have barred public universities from considering race in admissions). The American Association for Affirmative Action filed. And so did a range of civil rights groups. Notably these included some Asian-American organizations (though some Asian-American groups are on the other side) and the Anti-Defamation League, a Jewish organization, even though some critics of the policies at Texas have compared them to the anti-Jewish quotas that once curbed Jewish enrollments at elite colleges (the brief argues that what Texas is doing is not remotely similar).

Many of the briefs cite history, including one from the daughter and nephews of Heman M. Sweatt, who was denied admission to the University of Texas at Austin law school because he was black, and who had to take his case to the U.S. Supreme Court, which in 1950 ruled that he was entitled to admission. The Sweatt case, while less famous than the Brown v. Board of Education ruling that would follow four years later, is considered a key step in dismantling the doctrine of "separate but equal."

The Importance of the Case

If the number of amicus briefs decided a case, affirmative action admissions would be secure, as those suing the University of Texas attracted far fewer. (A University of Texas website has all the briefs from both sides, but as of Monday night was still dealing with those coming in in favor of the university; the other side had an earlier deadline.) That's of course not how Supreme Court cases are decided (notwithstanding Justice O'Connor's quotes in 2003). And lawyers who are leading the charge against Texas have been predicting for weeks that today would see a barrage of briefs. But the volume of briefs testifies to the importance of the case -- regardless of what one feels about the consideration of race in admissions.

The case before the Supreme Court now is over whether the University of Texas is exceeding the right to consider race and ethnicity granted by the 2003 decision. The plaintiffs argue that because Texas uses a statewide "10 percent" plan – in which students in the top 10 percent of their high school classes are automatically admitted to the public college of their choice – the state’s flagship university can achieve a diverse student body without race-based policies. (Many Texas high schools have enrollments that are overwhelmingly made up of members of particular racial or ethnic groups, so the plan provides a steady stream of black and Latino students to UT Austin.)

The university and other defenders of affirmative action argue that just because a university can achieve some diversity without the consideration of race and admissions does not mean that it may not also consider race and ethnicity to achieve a higher level of diversity.

The 2003 ruling affirming the right of the University of Michigan to consider race in admissions, like most decisions upholding affirmative action plans, suggests that the consideration of race should take place only when other approaches would not work.

In theory, the Supreme Court could decide the case narrowly, focusing on whether 10 percent system means that the University of Texas can't consider race directly in admissions, since it can admit diverse students through that system. But many observers -- on both sides of the case -- expect the Supreme Court might consider whether it wants a do-over on the 2003 ruling. Justice O'Connor is no longer on the bench. And one of the justices who has backed the consideration of race in the past, Justice Elena Kagan, has apparently recused herself, likely because she -- while serving as U.S. solicitor general -- filed a brief backing Texas before the U.S. Court of Appeals for the Fifth Circuit.

A 4-4 tie would preserve the Texas policy (because it was upheld by the Fifth Circuit). But of the eight justices who will be voting, only three are considered reliable votes to back Texas. As the recent decision on health care indicated, Supreme Court outcomes are hard to predict, but both Chief Justice John Roberts and Justice Anthony Kennedy have in decisions involving elementary and secondary schools (and Kennedy, in the 2003 decision) expressed great skepticism about the consideration of race by public entities.

The Arguments

In many ways, the two sides in the Supreme Court case are arguing about what justifies the consideration of race. The plaintiffs in the case -- who represent Abigail Fisher, a white woman rejected by UT Austin -- argue that the constitutional bar for considering race and ethnicity is extremely high, and that colleges don't have rationales to clear it. As the brief filed for Fisher states: "If any state action should respect racial equality, it is university admission. Selecting those who will benefit from the limited places available at universities has enormous consequences for the future of American students and the perceived fairness of government action. Strict scrutiny thus remains the rule, not the exception, when universities use race as a factor in admissions decisions.... Because UT cannot bear that heavy burden, its use of race in denying admission to petitioner was unconstitutional."

In essence, most of the amicus briefs are arguing that there are indeed reasons so compelling that they justify consideration of race. Here is a summary of some of the arguments filed Monday:

This isn't just about higher education: Perhaps related to the success of the briefs from military and business leaders filed in 2003, similar briefs were filed Monday. The brief from military leaders (a slew of retired four-star generals and admirals) argues that the military needs diversity, and that the Reserve Officers' Training Corps depends on the diversity of participating universities. "For the United States military, a highly qualified and racially diverse officer corps is not a lofty ideal. It is a mission-critical national security interest," the brief says.

Similarly, a brief filed by large American businesses said that these companies have "found through practical experience that a workforce trained in a diverse environment is critical to their business success. Amici are dedicated to promoting diversity as an integral part of their business, culture, and planning. But amici cannot reach that goal on their own. The only means of obtaining a properly qualified group of employees is through diversity in institutions of higher education, which are allowed to recruit and instruct the best qualified minority candidates and create an environment in which all students can meaningfully expand their horizons." Dell, Halliburton, Microsoft, Starbucks, Walmart and Xerox are among the companies that signed on.

The Supreme Court affirmed the value of diversity in 2003, in the Grutter opinion that Justice O'Connor wrote. The 2003 decision by Justice O'Connor is cited over and over again, on just about every key issue in the 2012 case. Supporters of affirmative action seem to want to remind the justices that they ruled on this matter only nine years ago (a short time span for the Supreme Court). The Obama administration, for example, writes on the issue of diversity that in Grutter, the court "held that a university may conclude that the educational benefits of diversity ... are essential to its educational mission." A paragraph later, the brief argues that "the educational benefits of diversity identified in Grutter are of critical importance to the United States."

The plaintiffs' comparisons are wrong. Fisher's lawyers have cited cases in which courts have barred consideration of race. But a brief filed by the Ivy League universities (plus Duke, Johns Hopkins, Stanford and Vanderbilt Universities; the Massachusetts Institute of Technology and the University of Chicago) argues that these cases are either about employment or contracting or involve cases where race is a defining criterion, not one among many. The plaintiffs make a "basic error" by equating "any attention to demographics as a factor in assessing diversity" to "outright racial balancing," the brief says.

Further, it questions the use of court rulings outside higher education, to which courts have long agreed some deference is appropriate to expertise and academic freedom. "[H]igher education is far afield from government contracting and public employment, in which the state actors employing the racial classifications would have no reasonable claim to any special expertise as to whether historical discrimination has occurred."

Many colleges can't achieve diversity without considering race. "For every aspect of the diversity they seek – including but not limited to socio-economic, athletic, artistic, intellectual, ethnic, and racial – amici have needed to identify students that can offer it, and consider those potential contributions in the discussion that takes place concerning virtually every well-qualified applicant," says a brief filed by leading liberal arts colleges, including Amherst, Bryn Mawr, Davidson, Haverford, Mount Holyoke, Oberlin, Swarthmore and Vassar Colleges, among others.

The brief argues that every applicant at these institutions is considered "holistically," without any cutoff score or quota, but that admissions officers need to be able to base decisions in part on patterns that result in black and Latino students, on average, receiving lower quality K-12 educations than do other students. "If liberal arts institutions are to fulfill their educational missions, colleges have to be sensitive to race in making admissions decisions. That need stems directly from continuing disparities in precollegiate academic achievements of black and white students," the brief says.

Colleges that have tried to be race-neutral have lost diversity. A brief by the president and chancellors of the University of California notes that in 1996, their state became the first to bar the consideration of race in admissions. At that point, the brief says, enrollments of underrepresented minority groups fell sharply. Since then, the university system has tried numerous programs and policies that are not based on race but that officials hoped would promote more diversity.

"They have not enabled the University of California fully to reverse the precipitous decline in minority admission and enrollment that followed the enactment of Proposition 209, nor to keep pace with the growing population of underrepresented minorities in the applicant pool of qualified high school graduates," the brief says. "These effects have been most severe and most difficult to reverse at the university’s most highly-ranked and competitive campuses."

Courts shouldn't tell colleges how to admit students. "This court should not displace a university’s educational judgment with a cramped prescription of what kind of diversity and how much diversity an institution needs. To do so would represent a sharp break from the longstanding and salutary tradition of governmental forbearance in higher education," the brief from the American Council on Education says. "To impose a single definition of diversity on all of higher education would conflict with the Court’s precedents and undermine those benefits."

The impact of a ban on race consideration would be broader than people realize. Many have assumed that the issues before the Supreme Court would not affect open admissions community colleges, but a brief by the Houston Community College System suggests otherwise. Transfer admissions have received scant attention in this and other race-conscious admissions cases. Yet students who transfer to UT from HCC and elsewhere make a significant contribution to UT’s educational efforts by broadening campus diversity," says the brief. It goes on to say that Texas gives "modest" consideration to race and ethnicity in transfer admissions decisions, and that this helps those students who start at community colleges, and helps promote diversity at UT.

"Transfer students from HCC play a significant role in expanding diversity at UT and other four-year institutions," the brief says. "Of the 110,295 students who transferred from HCC to four-year institutions between 2001 and 2011, 29,986 were African-American and 20,495 were Hispanic." The brief suggests that these figures would drop if UT and other institutions were barred from any consideration of race.

How these arguments will fare with the justices is unclear. Critics of the consideration of race can be expected to contest these (and other) rationales.

Oral arguments are October 10.

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