U. of Texas Aims at Supreme Court's Likely Swing Vote in Defending Race-Conscious Admissions

August 07, 2012

The University of Texas at Austin is defending race-conscious admissions before the U.S. Supreme Court with arguments that explicitly seek to win over Justice Anthony M. Kennedy, widely regarded as the court's swing vote on the issue.

In a brief submitted to the court on Monday, the university focuses much of its energy on offering Justice Kennedy assurances that the policy is distinct from one he found troublesome when the Supreme Court last weighed in on such admission practices, in 2003.

More broadly, the university argues that its policy exemplifies the type that the Supreme Court approved in its previous decisions on affirmative action, and accuses those challenging its admission policy as unconstitutional of seeking to overturn 35 years' worth of Supreme Court precedents dealing with colleges' consideration of the race or ethnicity of applicants.

The brief argues that Abigail Noel Fisher, the rejected Texas applicant who filed the lawsuit now before the court, "really is just asking this court to move the goal posts on higher education in America." It argues that a Supreme Court decision to overrule, or effectively gut, past court decisions allowing race-conscious admissions "would jeopardize the nation's paramount interest in educating its future leaders in an environment that best prepares them for the society and work force they will encounter."

In a videotaped announcement that the brief had been filed, William C. Powers Jr., the flagship campus's president, said, "We're confident that we'll prevail in this case, and that this will bring benefit to American higher education and to our nation and to the State of Texas."

The Supreme Court is scheduled to hear oral arguments in the case, Fisher v. University of Texas at Austin (No. 11-345), in October. One its more liberal members, Justice Elena Kagan, has recused herself, having been involved in her previous position as U.S. solicitor general in the Obama administration's submission of a brief supporting Texas when the case was before the U.S. Court of Appeals for the Fifth Circuit.

Of the court's eight remaining members, four—Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr., Antonin Scalia, and Clarence Thomas—are regarded as so skeptical of race-conscious government policies they probably will seek to abandon the court's 2003 Grutter v. Bollinger decision, which declared that narrowly tailored race-conscious admission policies can serve a compelling government interest. Three others, Justices Stephen G. Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor, are seen as likely to fully support Texas.

Justice Kennedy stands out as a swing vote because in the Grutter decision he accepted the idea that such policies provide educational benefits that serve a government interest, but rejected the policy at issue, from the University of Michigan's law school.

In the separate dissent he penned as part of the court's 5-4 Grutter ruling, Justice Kennedy argued that the Michigan law school gave too much weight to race for its policy to be considered narrowly tailored. He accused the law school of using race as "an automatic factor" in most admission decisions. Citing evidence that the law school's admissions officers consulted daily reports breaking down the racial composition of each incoming class, he argued that the school was using "numerical goals indistinguishable from quotas," which the Supreme Court had struck down in 1978 ruling in Regents of the University of California v. Bakke, involving a medical school.

The brief that the University of Texas filed on Monday said its policy "lacks the features that Justice Kennedy found disqualifying in Grutter: It is undisputed that UT has not established any race-based target; race is not assigned any automatic value; and the racial or ethnic composition of admits is not monitored during the admissions cycle."

Texas's brief accuses Ms. Fisher's lawyers, who submitted their own brief to the court in May, of going back on factual concessions they had previously made in the case by freshly accusing Texas of trying to strike a particular racial balance in its enrollment. The university says that it considered the state's demographic breakdown only in considering whether black or Hispanic students were underrepresented on the Austin campus, and that the way its admission process is structured precludes any attempt to pass decisions on applications with race- or ethnicity-based enrollment targets in mind.

In response to arguments by Ms. Fisher's lawyers that the court should consider overturning Grutter, the university argues that a court decision to change its stand after just nine years "would upset legitimate expectations in the rule of law," not to mention society's interest in training America's future leaders in a diverse campus environment. The university accuses Ms. Fisher's lawyers of improperly raising an issue that had not been before the lower courts and was beyond the scope of its request that the Supreme Court hear the case.

Much of the university's brief is devoted to countering the other side's argument that the university had been achieving sufficient levels of diversity through a race-neutral means, a state law guaranteeing admission to any public university to young Texans in the top tenth of their high-school class.

Such an argument, it says, "ignores the importance of diversity among individuals within racial groups" and the educational benefits of considering individual applicants' race to ensure that, for example, it can enroll minority students from relatively advantaged backgrounds who can help break down stereotypes.