by Jeremy Leaming
In 2003 a much different U.S. Supreme Court upheld the right of universities to shape their student bodies, in part, by relying on race-conscious admissions policies. Today, a more conservative court examined the constitutionality of the University of Texas at Austin’s admissions policy, which considers race among many other factors.
The university’s admissions policy is being challenged by a white woman, Abigail Fisher, who says her constitutional rights were subverted by the school’s admissions policy. An array of groups has lodged friend-of-the court briefs both for and against the policy. Conservatives have long hoped to end race-conscious admissions policies arguing they violate the Constitution’s equal protection clause. But in its 2003 Grutter v. Bollinger opinion, the high court led by Justice Sandra Day O’Connor upheld the University of Michigan law school’s race-conscious admissions policy, finding that the school’s compelling interest in creating a vibrant educational experience was not an affront to the equal protection clause. The Grutter majority “recognized that racial and ethnic diversity is a compelling state interest of public colleges and universities,” and that the Court’s precedent supported giving deference to schools’ decisions on their educational missions.
But that opinion failed to dissuade rightwing pundits, activists and outfits from continuing to claim that it is long past time for universities to stop taking race into account when creating student bodies.
For example rightwing or libertarian activists have long argued that a “correct” reading of the Constitution forbids race-conscious policies. Muñoz notes that frequent National Review writer Roger Clegg says that race-conscious “government actions are ‘untenable’ with the Constitution.” But Muñoz, citing an amicus brief filed by the Constitutional Accountability Center, notes that for decades the high court has recognized that such policies are permissible pursuant to the Fourteenth Amendment. “As our brief explains, not only does the Amendment’s text permit government to enact race-conscious policies to fulfill the Constitution’s promise of equality, but the Framers of the Amendment themselves enacted such measures.”
Muñoz also challenges the argument that there are serious alternatives to race-conscious admissions policies. He notes that the Century Foundation’s Richard Kahlenberg has long argued that race-conscious policies should be replaced by those that center on socioeconomics. Muñoz, however, says that “social science evidence” submitted to the Supreme Court does not support Kahlenberg’s argument. For instance Muñoz notes several press reports about that evidence, one stating that “nearly 100 briefs filed in the Fisher case also include several from social science researchers arguing race-neutral alternatives don’t work. In its brief supporting Texas, the University of California argues that when state voters ended affirmative action in 1996, it was unable to enroll a critical mass of black students, particularly the two most prominent campuses – Berkeley and UCLA.”
As noted on this blog, a group of former military and civilian leaders also lodged an amicus brief arguing in favor of race-conscious policies. The group not only addressed the constitutionality of such policies, but argued they are integral to the military’s work of maintaining a diverse officer corps, which is “vital to military effectiveness.”
In sum, the argument was not terribly revealing of how the Court will rule. The liberals were plainly supportive of the Texas plan and concerned about the possibility of overruling Grutter. The conservatives were largely silent. That will almost certainly change as counsel for the University and Solicitor General Verrilli stand up to defend that plan.
Whether Verrilli’s work will succeed in persuading one of the Court’s rightwing justices to leave precedent alone and allow universities to continue using race-conscious admissions policies, of course, is yet to be known. But he has a heavy lift.
For additional insight into Fisher and the future of race-conscious university admissions policies, check out this ACSLAW Talk Podcast.