USSC might be ready to strike race-based affirmative action: Professor Schwinn

As published by Star-Telegram

The affirmative action case that will be argued for the second time before the U.S. Supreme Court on Wednesday is listed as Abigail Noel Fisher v. University of Texas at Austin. It could just as well be called Bizarro Equal-Protection World v. Last-Ditch Effort, to borrow the language lawyers for each side used in court papers to criticize the other side’s position.

At issue is the constitutionality of UT’s consideration of race and ethnicity in deciding which applicants to admit to its undergraduate ranks. About three-fourths of freshmen get in under a state law that guarantees acceptance solely on the basis of Texas high school class rank. The rest, including applicants from outside Texas, must pass muster under a so-called holistic review that takes race and ethnicity into account along with leadership qualities, community service, family responsibilities, grades, test scores, essays and other factors.

In its first review of the case, the Supreme Court in 2013 set aside a lower court’s approval of UT’s program and instructed that court to scrutinize more closely the university’s justification for racial and ethnic considerations. The 5th U.S. Circuit Court of Appeals ruled last year, as it did in 2011, that UT’s program is acceptable.

A ruling against UT by the Supreme Court could make it harder for colleges and schools around the nation to defend race-conscious admissions programs against legal assault. It could also force courts to be much less deferential to schools’ arguments that race-neutral approaches, such as Texas’ automatic admission law, are insufficient to achieve the educational benefits of diversity.

“I don’t think the Supreme Court would have taken the case a second time if it simply wanted to affirm what the 5th Circuit did,” said Steven Schwinn, an associate professor at the John Marshall Law School in Chicago. “One possible explanation is that the court is ready to strike race-based affirmative action entirely. I think a more modest position, and probably the correct one, is that the court is going to tighten the requirements on affirmative action yet more.”

The Fisher case comes before the high court at a time of intense national debate regarding racial bias, including protests at such campuses as Yale and Princeton, where some of the justices went to school, and complaints prompted by videos of white police officers using deadly force on black suspects. And as the court itself noted this year in a housing case involving Texas, residential segregation by race was declared unconstitutional almost a century ago, but “its vestiges remain today, intertwined with the country’s economic and social life.” Just how these broader concerns might shape the oral arguments or the court’s ruling remains to be seen.

The case also emerges against a backdrop of two decades in which black freshman enrollment at UT has remained essentially flat, averaging 4.3 percent of the class, despite the university’s efforts in recruitment, scholarships, holistic application review and other measures. Nor has the automatic admission law done much to boost black enrollment. Ostensibly race-neutral, the law “exploits the fact that Texas high schools are highly segregated,” Richard Rothstein, a research associate at the Economic Policy Institute in Washington, wrote in a post on scotusblog.com.

Fisher, who attended high school in Sugar Land, and Rachel Multer Michalewicz, who went to Jack C. Hays High School in Buda, sued UT in 2008 after their applications for admission were rejected. Both are white, and neither was ranked in the top 10 percent of her class, the standard at the time for automatic admission to UT. Their lawsuit contended that the university’s consideration of race violated the Constitution’s equal protection clause. Michalewicz later withdrew from the case.

U.S. District Judge Sam Sparks of Austin upheld UT’s program, but not before remarking on the lofty but somewhat ill-defined standards articulated in 2003 by the Supreme Court in a 5-4 ruling involving the University of Michigan. The high court held that it was acceptable to strive for a “critical mass” of underrepresented minority students but that such efforts must be “narrowly tailored” after “good-faith consideration” of race-neutral alternatives.

“I feel like I’m out walking in a snowstorm barefoot,” Sparks said during a 2008 hearing after lawyers for the university and the plaintiffs struggled to define those terms.

‘Last-ditch effort’

In papers filed with the Supreme Court in Round Two, Fisher’s lawyers wrote that the 5th Circuit failed to conduct what Justice Anthony Kennedy, who wrote the majority opinion in the first round, called a “searching examination” of whether the university’s racial and ethnic considerations are necessary to obtain the educational benefits of diversity.

Her lawyers also argued that the appeals court engaged in “inexcusable” judicial “freelancing” by conducting Internet research to explore some of the university’s justifications for the program. In addition, they charged that UT favors minority students from high-performing integrated schools over those from low-performing inner-city schools and that use of race is ineffectual because it appears to produce only a small increase in minority students. And they dismissed as “a last-ditch effort” UT’s suggestion that the Supreme Court order a trial if it needs to flesh out the record.

“The Court must bring this runaround to an end,” Fisher’s lawyers wrote. “By holding that UT discriminated against Ms. Fisher and reversing the judgment below, the Court will not only vindicate her equal-protection rights, it will remind universities that the use of race in admissions must be a last resort – not the rule.”

For their part, UT’s lawyers said Fisher is asking the justices to inhabit a “bizarro equal-protection world,” one in which it is somehow a constitutional flaw that the university’s consideration of race is nuanced, merely one of many factors taken into account but not the sole or overriding basis of an admission decision. What Fisher calls vice is actually virtue, they said.

“This process, while not required by the Constitution, can only protect the dignity interests of applicants in ensuring that the ultimate admissions decisions are made on a ‘competitive’ basis in which race is only one factor in a truly individualized and holistic evaluation,” UT’s lawyers wrote. “UT simply seeks minority students with different backgrounds, different experiences, and different perspectives. That is precisely the diversity that this Court has held universities have a compelling interest in seeking.”

Moreover, the university’s lawyers wrote, holistic review “is also important in addressing UT’s reputation as an unwelcoming and closed community to African-Americans and Hispanics – a key to encouraging students to apply to and attend UT.”

Blacks barred until 1950

That is an acknowledgment of the university’s continuing struggle to forge a post-segregation identity. State law barred blacks until 1950, when a unanimous Supreme Court ordered Heman Sweatt, who was black, admitted to UT’s School of Law.

UT President Gregory L. Fenves, who plans to attend Wednesday’s oral arguments, noted in an interview that dozens of friend-of-the-court briefs supporting the university have been filed by major companies, retired military officers and other schools.

“We haven’t outlined all the options” if UT’s use of race and ethnicity is struck down, he said. “It would be a real detriment to education at UT and a detriment to the state of Texas. We’re going to go into court with a very strong position that we’ve met the constitutional standard.”

In a video posted on YouTube, Fisher, who also plans to be in the courtroom gallery Wednesday, sounded like she wants more than UT’s program eliminated.

“Whether you’re male or female or white or black, it shouldn’t matter,” said Fisher, 25, who graduated from Louisiana State University in 2012 and works as a financial analyst in Austin. “It should come down to your grades and your activities and whether or not you deserve to get in, and it should be based on merit, and it shouldn’t be based on any other external factors.”

Her lawyers aren’t seeking such a sweeping decision. But that’s the ultimate goal of the Project on Fair Representation, a nonprofit group whose director, Edward Blum, lined up Fisher as plaintiff and funding for the litigation. He also organized lawsuits filed last year against Harvard University and the University of North Carolina at Chapel Hill that seek “the outright prohibition of racial preferences in university admissions – period.” Those cases are on hold pending the Supreme Court’s decision in the Fisher case.

 

 

 

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