Supreme Court’s affirmative action ruling puts universities’ race-preferred admissions on life support

By Jess Brown

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Although the Supreme Court’s end-of-term decisions about gay marriage dominated media coverage and public debate during the last week of June, its hot-off-the-press decision about affirmative action and university admissions deserves a close reading by university trustees, presidents and faculty. In the decision of Fisher v. University of Texas at Austin, Justice Kennedy, speaking for a seven-member majority, may have substantially redefined the permissible scope of affirmative action in the context of university admissions. It is also worth noting that both members of the Court from racial/ethnic minorities – Thomas, an African-American, as well as Hispanic Sotomayor – supported his position.

UT-Austin, relying on a model for affirmative action approved in 2003 by the Supreme Court, administered an admissions program that used the race of the applicant as a “plus factor” in the university’s effort to achieve “critical mass” of minority students. The university had no numerical formula associated with race for making an admissions decision and no specific quota for any racial group.

The university had argued successfully before two lower federal courts that the educational environment for all students was enhanced by a student body reflecting social diversity. The lower courts concluded that substantial deference should be shown to universities about this matter, and went further by concluding that such social diversity within universities may be considered a “compelling social interest” which may be pursued constitutionally with so-called race-conscious remedies.

Kennedy and colleagues largely rejected the arguments of UT-Austin and many of the assumptions by the lower courts. While the court majority, consisting of both conservative Republicans and liberal Democrats, did not declare affirmative action completely “dead” in the context of university admissions, it did send a firm message that business-as-usual regarding race-conscious admissions is no longer permissible. The content and tenor of Kennedy’s ruling, if applied in good faith by university decision-makers, may portend dramatic changes in the very definition of affirmative action and will almost certainly alter the administration of many admissions programs in higher education.

According to the court, diversity, while a permissible and laudable goal, can no longer be a code word or substitute for the idea of achieving only racial or ethnic heterogeneity. The court suggests that if a university is to pursue preferential admissions in the name of diversity, then the concept must entail many forms of social diversity, not just or even primarily the applicant’s race. Also, the absence of a fixed quota for a racial group or the absence of awarding of points for admission based on race does not give a university’s affirmative action program constitutional approval. If race is a “meaningful factor” in the admissions process in any way, then the program is constitutionally suspect! And finally, the court declares in no uncertain terms that a preferential admissions program with race as a component is not to be justified on the basis of redressing past discrimination, since the business of redressing past wrongs is the province of courts and legislatures, not universities and their faculties.

Essentially the high court required universities to justify to lower courts why institutions of higher learning cannot achieve genuine social diversity (racial and otherwise) through race-neutral means and without resorting to any use of the applicant’s race. The logistics for implementation of this new legal test may present a major challenge to university trustees, presidents and faculty, and will likely generate some interesting discussions in a university’s hallowed hallways of political correctness.

In sum, the Court’s new set of assumptions and new constitutional test may have placed many extant preferential admissions programs in higher education on life support!

This article originally appeared on AL.com on July 2, 2013

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