U. of Texas Stands on Firm Legal Ground in Supreme Court Case


On the campus of the U. of Texas at Austin (above) and elsewhere, educators await the Supreme Court's latest decision on affirmative action.
October 02, 2012

Many people in higher education are anxiously awaiting the outcome of Fisher v. University of Texas at Austin, the latest U.S. Supreme Court case to test the notion that colleges have the right to consider race and ethnicity in making admissions decisions.

There is no question that much is at stake as the justices prepare to hear oral arguments next week over the constitutionality of the University of Texas' admissions plan, which accepts some students based on a formula that includes race as a factor.

And there is also no question that the membership of the Supreme Court has changed since the 2003 University of Michigan case, Grutter v. Bollinger, when the court ruled that colleges can take an applicant's race or ethnicity into consideration in order to achieve the compelling state interest of increasing diversity in the student body.

But those of us who have filed briefs backing the university and who believe the challenges of an increasingly interconnected world make the pursuit of diversity across college campuses even more urgent today than in 2003 should remain hopeful that the court will not abandon that precedent.

The Grutter decision was well supported and well reasoned. At its heart, it recognized that a plan like the one employed by the University of Texas is a nuanced process in which race is just one factor among many, not a controlling factor. Admissions officers strive to construct a diverse student body, one where individual talents, personal interests, academic skills, and geographic origin all play a role.

But it is also important to keep in mind that Grutter does not stand alone. Not only is it supported by the weight of decades of Supreme Court precedents backing the pursuit of higher-education diversity, it also rests on a national history of government and legal support for higher-education pluralism.

Since the founding of the country, the Supreme Court, Congress, and the executive branch have vested individual colleges with the power to make decisions about higher-education practices and principles, including the ability to decide whom to admit.

Out of this freedom has evolved an American system of higher education that is unique. While many other countries control their colleges from a central ministry, the U.S. system of higher education has always been decentralized, with key academic and administrative judgments left to individual institutions.

The result is a richly diverse system of public and private, two-year and four-year, small liberal-arts and large research colleges and universities with a wide array of curricula and missions. It is a system that remains the envy of the world, attracting hundreds of thousands of international students to the United States every year.

The Supreme Court in particular has long been a champion of granting colleges authority to make academic and educational judgments.

In 1819, the Supreme Court ruled that the state could not force Dartmouth College to become a public institution. In looking at the question of whether government had the power to alter a college charter, the court decided that an institution's board of trustees was better suited than the state to govern the college.

Chief Justice John Marshall explained in that ruling that educators, not legislators, should make key decisions in educational matters. Over the following two centuries, the Supreme Court has only reinforced the educational authority of colleges.

Justice Felix Frankfurter cited the idea in a 1957 Supreme Court ruling when he wrote that there are "four essential freedoms" of a university: "To determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study."

The plaintiffs in the Fisher case say the University of Texas can fashion a diverse-enough student body with its policy of admitting all public high-school students from Texas who are in the top 10 percent of their classes. But the University of Texas does not believe that that plan is creating a truly diverse student body, and that is a judgment that the university should make, not the courts.

Likewise, the university is best equipped to decide whether a narrowly tailored plan that takes race and ethnicity into account as just one factor among many in admissions decisions is the most effective way to achieve the type of diverse campus that will best serve its students' educational needs.

It is never wise to make predictions about the outcome of a Supreme Court case. But Texas' admissions plan stands on firm ground, shored up by two centuries of legal precedents and federal deference to educational pluralism and academic independence.

Ada Meloy is general counsel at the American Council on Education.