PI Original Ellyn Fortino Tuesday July 2nd, 2013, 2:00pm

Legal Experts: SCOTUS Decision Leaves Affirmative Action ‘Up In The Air’

Last week, the U.S. Supreme Court decided to send a case involving the University of Texas at Austin’s race-conscious admissions policy back to a lower court for a second look. We explore what the decision means for affirmative action programs in the nation's colleges and universities.

Last week, the U.S. Supreme Court decided to send a case involving the University of Texas at Austin’s race-conscious admissions policy back to a lower court for a second look.

As a result, legal experts say affirmative action programs in the nation’s public colleges and universities will continue as normal — for now.

“What will happen in the long-run is certainly up in the air, but we can certainly expect more future litigation,” said Vinay Harpalani, visiting assistant professor of law at the Illinois Institute of Technology’s Chicago-Kent College of Law.

The high court’s 7-to-1 decision last Monday did not say whether the University of Texas’ race-conscious system used to admit some of its students was constitutional or not. Instead, it said the U.S. Court of Appeals for the Fifth Circuit in New Orleans did not scrutinize the school’s admissions practices hard enough.

Robert Bennett, constitutional law professor at Northwestern University School of Law, called the decision “not terribly surprising,” but overall a bit “weaselly.” It dodged one of the Supreme Court’s main functions: to give lower courts guidance on the law for a particular subject, he said.

But ultimately, the decision was probably the best “realistic” outcome for supporters of affirmative action, given the current composition of the Supreme Court, Harpalani said.

“Of course they could have upheld the University of Texas’ [affirmative action] policy, but no one really thought that was going to happen, given the positions of the justices on the court,” he said.

Supreme Court Justice Anthony M. Kennedy wrote for the majority, which also included the more conservative-leaning Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. Justices Stephen G. Breyer and Sonia Sotomayor, who tend to be more liberal, also joined the majority.

Justice Ruth Bader Ginsburg dissented, and Justice Elena Kagan recused herself. According to the New York Times, Kagan worked on the case as a solicitor general.

Overall, the court’s decision was a very narrow one, Harpalani explained. The majority of the justices said the federal appeals court did not correctly apply strict scrutiny (a legal standard that courts have to use when looking at affirmative action cases) and sent the case back without saying much more, he said.

And that decision came as good news for many on both sides of the issue.

Affirmative action supporters were worried that the high court would use the Fisher case as a way to overturn its 2003 Grutter v. Bollinger decision, Harpalani noted. Reversing Grutter, which found the University of Michigan Law School’s narrowly tailored, race-conscious admissions policy to be constitutional, would have essentially prevented colleges and universities from factoring in race.

Sherrilyn Ifill of the NAACP’s Legal Defense and Educational Fund applauded Monday’s decision in a statement, writing that the high court “upheld the equal protection framework as laid out in Grutter.”

“(The Supreme Court) recognized that a diverse campus brings important benefits, ‘including enhanced classroom dialogue and the lessening of racial isolation and stereotypes,’” Ifill wrote. “This is a win for the principles of opportunity, diversity and equality.”

The Mexican American Legal Defense Fund’s lead counsel David Hinojosa also cheered the decision in a statement.

"The Court recognized and affirmed the great importance of student diversity, and not just for those students whose race may have been considered but for all other students," said Hinojosa. "To the chagrin of the anti-diversity camp, the door to equal opportunity has not been slammed shut. We will remain involved in the case to ensure that qualified Latino students continue to access higher education."

In addition, the Advancement Project’s co-director Penda Hair said the national, multi-racial civil rights organization was “grateful the Supreme Court’s decision continues to recognize that colleges and universities can use race to achieve their compelling interest in having a diverse student body.”

At the same time, Abigail Fisher, the plaintiff challenging the University of Texas’ admissions policy, also considered the decision a victory.

“I’m grateful to the justices for moving the nation closer to a day when students’ race isn’t used at all in college admissions,” she said in a statement issued by the Project on Fair Representation, which helped her with legal counsel.

The Project on Fair Representation’s Director Edward Blum said, “This decision begins the restoration of the original colorblind principles to our nation’s civil rights laws.”

Clearly, the debate over affirmative action in higher education is far from over, legal experts noted.

“We certainly haven’t seen the end of it,” Bennett said. “The Supreme Court, in this decision, has held open the possibility that it will say race can’t be considered at all, and that possibility will encourage some more lawsuits, quite possibly.”

Fisher v. University of Texas

At issue last Monday was the case of Fisher v. University of Texas, in which Fisher, who is white, alleged that she was discriminated against based on her race when her 2008 application to the University of Texas at Austin was rejected. The case was heard back in October.

Under Texas state law, colleges and universities in the state must admit top academic students who graduated from local high schools, known as the Top 10 program. The race-neutral admissions system accounts for 80 percent to 85 percent of the University of Texas’ admitted class, Harpalani explained.

The University of Texas maintains that it would not have enough diversity on campus with the race-neutral system alone, which is why the remaining 15 percent to 20 percent of students have been admitted through a holistic admissions policy that considers race, academic record and other factors.

Fisher argued that the University of Texas admitted enough black and Latino students under the Top 10 percent law by itself, therefore the school does not need to use a race-conscious policy for the remaining admitted students, Harpalani said.

Ultimately, Fisher fell shy of meeting the criteria for the Top 10 program, and was not otherwise as outstanding as any of the other white students who were admitted to the university, said Loyola University Chicago Law Professor Juan Perea.

“This has actually been true with all the plaintiffs in these lead affirmative action cases. None of them would have gotten in anyway,” Perea said. “So it’s remarkable that ... the [Supreme] Court hears cases like this.”

In Fisher’s and many other lead affirmative action cases, “disgruntled white applicants” who were less qualified than other white students who were accepted, have decided to make it harder for minority students to be admitted to colleges and universities, Perea added.

In the end, the Fifth Circuit Court of Appeals said Fisher did not have a case after it reviewed the University of Texas’ admissions policy.

But Supreme Court Justice Kennedy wrote that courts looking at affirmative action programs have to “verify that it is necessary for a university to use race to achieve the educational benefits of diversity”, requiring “a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications.”

According to the court’s opinion, colleges and universities must show that there are no “available, workable race-neutral” alternatives that could fill in for a race-conscious program. But the high court did not define the term ‘workable’, Harpaliani said, so that will be up to the lower court to decide.

Ginsburg, the lone dissenter, wrote that she would not have returned the case back to the lower court for a second look.

"The university reached the reasonable, good-faith judgment that supposedly race-neutral initiatives were insufficient to achieve, in appropriate measure, the educational benefits of student body diversity," she wrote.

Harpalani said it was surprising that the seven justices came to a consensus, as the court has been very divided in past affirmative action cases. In both the Grutter and 1978’s University of California V. Bakke cases, the rulings were 5 to 4. (In the Bakke case, the high court said affirmative actions programs are constitutional in certain circumstances, while systems that use race quotas are not).

At a news conference last Monday in Chicago, the Rev. Jesse Jackson said he was “disappointed” by the court’s recent decision and agreed that sending the case back was not needed.

“As Justice Ginsburg observed a decade ago, the use of race in admissions need not be strictly scrutinized when the category is used to include historically-excluded minority groups,” Jackson said. “We can still use affirmative action in higher education.”

Ifill said the NAACP’s Legal Defense and Educational Fund was confident that the University of Texas, and other universities that have been using affirmative action responsibly, would be able to meet the sharper standard that no "available, workable race-neutral" alternatives were available to them.

“However, it will be critically important that the voices of students – those most affected by the policy – be fully heard at any re-hearing, and we will do everything possible to help make that happen,” she wrote.

Wade Henderson, president and CEO of The Leadership Conference on Civil and Human Rights, said the coalition believes the University of Texas’ admissions policy “is a carefully crafted one that will ultimately be upheld by the Court of Appeals.”

But some legal experts are not as optimistic.

“It’s clear that the Supreme Court said (the appeals court) didn’t scrutinize this closely enough,” Bennett said. “That’s sort of a nudge to say the university hadn’t complied with a standard that is to be applicable here, and so it’s a nudge to find that the university system isn’t permissible.”

Bennett stressed that the decision will ultimately depend upon what the university comes up with to justify considering race. But Harpalani added that there is a good chance that the appeals court will strike down the university’s plan upon second consideration.

If that happens, it will be more difficult for the University of Texas and other colleges in the state to use race, but the rest of the country would not be impacted, he explained.

The situation may be different, however, if the policy is struck down and the case is appealed again to the Supreme Court, he said; although it’s less likely that the high court would actually accept the case in that circumstance, according to Harpalani.

What comes next?

Following last week's decision, colleges and universities will probably have to defend their admissions programs more vigorously, study the diversity on their campuses and ensure there are no other ways to achieve diversity without factoring in race, Harpalani noted.

Perea said the decision might encourage “a lot of lawsuits from disgruntled applicants who will allege that a university's program isn’t narrowly tailored enough.”

Harpalani agreed that there would certainly be more challenges to affirmative action plans, adding that he believes additional suits would be filed regardless of Monday’s decision.

And at some point, the issue of affirmative action will definitely go back to the Supreme Court, experts predicted.

“I’m just not sure if it will be Fisher,” Harpalani said. “And it could be in 10 years or so. It could be a while.”

A new survey released on the heels of Monday’s decision showed a majority of high school students favor colleges with student diversity. The Kaplan Test Prep survey of 689 high school students found that 60 percent said it was “very important” or “somewhat important” for their prospective college to have a racially-diverse student body. The online survey of Kaplan Test Prep students was conducted in May and June.

Perea stressed that diversity is important when it comes to educational benefits, but that is not the main reason why affirmative action matters. Affirmative action, which was created in 1961 by a presidential executive order, used to be understood as a remedy for past discrimination, he explained.

“That whole idea has been completely lost,” he said. “It’s just remarkable to me that the whole debate now is about diversity, rather than about addressing and redressing our history of past discrimination, which is quite provable.”

While the affirmative action debate rages on, Perea said it is important for people to keep in mind what is at stake. Striking down affirmative action altogether when it comes to higher education would mean a move toward the re-segregation of colleges and universities, especially among graduate, law and medical schools.

 “That thought seems like a very, very bad direction for the country and for our future,” Perea warned.  

Image: AP/Susan Walsh

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