Divided Supreme Court Confronts Race-Based College Admissions

Jess Bravin et al., Wall Street Journal, December 9, 2015

A divided Supreme Court Wednesday again confronted whether policies at the University of Texas at Austin meet the strict standards it has set out for the use of racial preferences in school admissions.

The court appeared conflicted on the question, with conservatives sharply questioning the school’s use of racial factors to add to its minority student body. Liberal justices, meanwhile, appeared supportive of the flagship university’s practice.

In a sign the court may not produce a definitive ruling on the issue, Justice Anthony Kennedy, likely the deciding vote, expressed frustration the case had arrived at high court a second time without more data on whether the school’s admissions process was working as intended. He suggested the justices might need to send it back to a lower court for additional fact-finding.

“We’re just arguing the same case,” he said. “It’s as if nothing had happened.”

He nonetheless pressed the parties for an answer he could support. Early in the argument session, he asked attorney Bert Rein, who represented Abigail Fisher, a white applicant who was rejected in 2008, to outline what the university could do to create a diverse freshman class if the school’s current use of race is unlawful, as Ms. Fisher claims.

“It’s not easy to do, and it’s not our job to do it,” Mr. Rein said.

But he argued the school’s consideration of race in admissions was too broad and untethered from its stated diversity goals. He also argued there were race-neutral ways to achieve diversity, such as focusing on students’ socio-economic and geographic backgrounds.

Ms. Fisher, who spoke briefly outside the courthouse following the argument, said she was optimistic her case would bring significant changes to university admissions practices.

“Like most Americans, I don’t believe students should be treated differently because of their race,” she said. “Hopefully, this case will end racial classifications and preferences at the University of Texas.”

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That 2003 opinion narrowly approved affirmative action in university admissions, and the Supreme Court predicted that “25 years from now, the use of racial preferences will no longer be necessary” to achieve student-body diversity.

Chief Justice John Roberts pointed to those words, written by retired Justice Sandra Day O’Connor, late in the argument in what potentially was a crucial line of questions for Washington attorney Gregory Garre, who represented the school.

He asked Mr. Garre when the need for racial preferences would no longer be necessary, saying it was an “extraordinary power” for universities to be able to admit or deny students because of their race.

Mr. Garre said he couldn’t give a precise date when preferences would no longer be needed. But he noted that after California and Michigan ended affirmative action, minority enrollment dropped at their selective public universities. {snip}

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Supreme Court precedent disfavors government policies that classify individuals by race. To pass muster, they must in general be “narrowly tailored” to attain a “compelling state interest.” The Fisher suit claims the UT program flunks that test.

If the Supreme Court overturns the appeals court, its ruling could affect wide swaths of higher education. A narrow decision might touch only major public universities, such as UT, that have colorblind options, such as the top 10% program that aims to bring a “critical mass” of minority students to campus.

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