Twenty-two current and former federal civil-rights officials have joined in urging the U.S. Supreme Court to strike down the race-conscious admissions policy at the University of Texas at Austin, arguing that it oversteps not only the Education Department’s guidelines but also legal advice given to colleges by higher-education groups.
None of the officials is an appointee of the Obama administration, which sided with the University of Texas in a federal appeals court and is widely expected to weigh in on the university’s behalf again as the Supreme Court prepares to hear the case, Fisher v. Texas, in the fall.
But the list of past and present officials who signed on to the friend-of-the-court brief opposing Texas appears tailor-made to get the attention of the conservative justices who hold a 5-to-4 majority of Supreme Court seats, in that it includes several appointees of Republican presidents who have remained prominent figures in the conservative movement.
Among those who signed the brief are Edwin Meese III, who was attorney general under President Ronald Reagan; William Bradford Reynolds, who served as assistant attorney general in charge of the Justice Department’s civil-rights division under Reagan; and Linda Chavez, who held civil-rights posts under Reagan and President George H.W. Bush, and who went on to establish the Center for Equal Opportunity, a leader in the fight against public policies based on race or ethnicity.
The brief accuses the University of Texas at Austin of shirking its obligation, under the Supreme Court’s 2003 Grutter v. Bollinger decision in a case involving the University of Michigan’s law school, to avoid using race-conscious admissions policies as long as it had race-neutral means to achieving sufficient levels of diversity on the campus.
The brief also argues that a race-neutral admission policy imposed on the university by Texas’ legislature—a law guaranteeing Texas students in the top 10th of their high-school class admission to any public university in the state—has brought the Austin campus sufficient levels of diversity, and other race-neutral means were available if the university wished to take additional steps to promote diversity on its campus.
Striking Down ‘Grutter’
The officials’ brief is one of at least 14 submitted to the Supreme Court on behalf of Abigail Noel Fisher, the white student who sued the University of Texas after being rejected by it in 2008. The Project on Fair Representation, a legal advocacy group that has been assisting Ms. Fisher in the courts, is compiling the briefs in support of her side on its Web site. The deadline for briefs supporting the University of Texas is in August.
Among the briefs filed in support of Ms. Fisher are several arguing that the lower courts would have struck down the Texas policy if they had met their obligation, under Supreme Court precedent, to subject the policy to strict scrutiny to ensure it was narrowly tailored to fulfill a compelling government interest. They include a brief filed by the Center for Individual Rights, which led the legal challenge to the University of Michigan’s policies the last time the Supreme Court considered race-conscious admissions.
Another brief, by 22 scholars of economics and statistics, challenges as unsubtantiated by objective measures of learning the university’s argument that its race-conscious policy is necessary to recruit a “critical mass” of minority students.
The Southeastern Legal Foundation, an advocacy group based in Marietta, Ga., says in its brief that the lower courts erred in deferring to the university’s judgment that it needed to use race-conscious admissions policies to fulfill its mission, and argues that the courts should hold such policies to the same strict standards applied to policies that consider race in order to remedy specific acts of discrimination.
Several other briefs call for the Supreme Court to overturn its Grutter precedent, an argument that Ms. Fisher’s lawyers did not make strongly in the lower courts but have embraced in their own Supreme Court brief. Among them, a brief submitted by several leading organizations opposed to race-conscious admissions—including the American Civil Rights Institute, the Center for Equal Opportunity, and the Pacific Legal Foundation—argues that “Grutter should be overruled because public universities across the country invoke it as an unqualified endorsement of race-based admissions standards.”
Richard H. Sander, a professor of law at the University of California at Los Angeles who has published studies questioning whether race-conscious admission policies achieve their goals, and Stuart Taylor Jr., a lawyer and journalist, have filed a brief on behalf of neither side in the case. In addition to questioning much of the research purporting to show that race-conscious admissions policies produce educational benefits, their brief urges the Supreme Court to “make ‘narrow tailoring’ meaningful” by restricting public colleges from adopting racial preferences that are any larger than their socioeconomic preferences, and by requiring colleges that use such preferences to disclose their size, their effects, and plans for phasing them out.
