Race-Conscious Admissions Policies Just Got Easier to Defend

The U.S. Supreme Court has greatly clarified its definition of legally sound race-conscious admissions policies and, in doing so, has managed to dispel many beliefs about what makes such policies vulnerable.

In a 4-to-3 decision delivered on Thursday, the court upheld a race-conscious policy for admitting undergraduates to the University of Texas at Austin. The court’s majority praised the Texas flagship for narrowly tailoring its policy and rejected assertions that the university must spell out its minority-enrollment goals.

A majority of justices also dismissed the argument that Texas could achieve diversity without considering race by admitting students based on class rank. They concluded that such policies are not actually race-neutral and, at least in the Austin campus’s case, would have serious educational shortcomings if relied on too heavily.

'Fisher' in Context: Making Sense of the Decision

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• As ‘Fisher’ Churned, Conversations About Campus Diversity Evolved

The court’s ruling in Fisher v. University of Texas at Austin (No. 14-981), a lawsuit brought on behalf of a white applicant to whom the Austin campus denied admission in 2008, hardly ends the legal and political debate over race-conscious admissions policies. Such policies remain under challenge in lawsuits against Harvard University and the University of North Carolina at Chapel Hill, and have been banned at public colleges in eight states, mainly through ballot initiatives.

The new decision does affirm, however, that the high court is unlikely to declare such policies unconstitutional anytime soon, and goes a long way toward spelling out exactly what steps colleges need to take to ensure their policies survive any legal challenge.

The court majority’s opinion “establishes a real sort of stability for institutional thinking and action,” said Arthur L. Coleman, a former deputy assistant secretary in the U.S. Department of Education’s Office for Civil Rights and managing partner at EducationCounsel, a firm that advises colleges. The new ruling, he says, spells out in much more detail than past Supreme Court decisions how colleges can craft policies that pass judicial muster.

Peter McDonough, general counsel for the American Council on Education, which had submitted a brief in support of Texas, said Thursday’s decision tells colleges “you don’t get a free pass, but you get a lot of deference” when it comes to devising admissions policies that consider race.

“The institution needs to be able to explain how they went about making their judgment,” Mr. McDonough said, “but it is their judgment to make.”

Fight Not Over

The Texas ruling comes after an academic year in which colleges were rocked by demonstrations by minority students who complained of feeling unwelcome and isolated on campus. Had the Supreme Court sided against the university, its decision could have greatly complicated colleges’ efforts to meet student demands for big increases in the share of students or faculty members who are black, Hispanic, or Native American.

Sherrilyn Ifill, president of the NAACP Legal Defense and Educational Fund, issued a statement that called the Texas ruling “a huge victory for civil rights” and said, “We hope that this decision will end the 30-year campaign by anti-affirmative activists to dismantle efforts by colleges and universities to provide access and opportunity to students of all backgrounds.”

Such an outcome appears unlikely, however. Roger Clegg, president of the Center for Equal Opportunity, a group opposed to race-conscious admissions policies, called the decision “a narrow one” and said it “leaves plenty of room for future challenges to racial-preference policies at other schools.”

A similar take was offered by Edward Blum, who organized the lawsuit against Texas as director of the Project on Fair Representation and has also mounted lawsuits challenging race-conscious admissions at Harvard and the University of North Carolina at Chapel Hill as president of a separate advocacy group, Students for Fair Admissions. He argued that Thursday’s decision “was a narrow one directed to UT’s unique admissions policies and will not have any bearing on the lawsuits against UNC or Harvard.”

Setting an Example

Justice Anthony M. Kennedy, who has been skeptical of race-conscious government policies and was widely regarded as the key swing vote in Texas case, wrote the majority opinion. He said that the Austin campus could serve as a leader for an educational system seeking “to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity.”

Joined by three members of the court’s liberal wing — Justices Stephen G. Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor — Justice Kennedy praised Texas for having offered a reasoned, principled explanation for its decision to consider applicants’ race. He wrote that the university had “articulated concrete and precise goals” for its policy that mirrored the Supreme Court’s definition of the government’s compelling interest in allowing race-conscious admissions. They included ending stereotypes, promoting cross-racial understanding, and preparing students for a diverse work force.

The majority opinion warned that the court’s affirmation of Texas’ policy “does not necessarily mean the university may rely on that same policy without refinement.” The university, it said, has an “ongoing obligation to engage in constant deliberation and continued reflection regarding its admissions policies.”

The opinion said the university must continue to use its extensive data on the impact of its admissions policies “to scrutinize the fairness of its admissions program; to assess whether changing demographics have undermined the need for a race-conscious policy; and to identify the effects, both positive and negative, of the affirmative-action measures it deems necessary.”

Justice Samuel A. Alito Jr. wrote a dissenting opinion, signed by Chief Justice John G. Roberts Jr. and Justice Clarence Thomas, that made clear that the court minority’s skepticism of such policies remains strong. It called the majority’s acceptance of Texas’ policy “remarkable — and remarkably wrong.”

By the Numbers

The majority swatted down a series of arguments by the plaintiff’s lawyers: that the university could have promoted diversity through means other than race-conscious admissions, that Texas’ consideration of race had too small an impact on minority enrollment to be justified, and that it could not call its policy narrowly tailored because it had not spelled out how much minority enrollment it needed.

The majority was especially resistant to the argument that Austin could achieve sufficient diversity through race-neutral means.

A 1997 state law guarantees Texas residents in the top 10 percent of their high-school class admission to any of the state’s public universities. Lawyers for the lawsuit’s plaintiff, Abigail Noel Fisher, had argued that the law had already provided the Austin campus with sufficiently high black and Hispanic minority enrollments, and that the campus could further increase such enrollments by removing a 75-percent cap on the share of students admitted based on class rank.

But the court’s majority pointed out that the law had been intended to increase minority enrollments, and relied on the de facto segregation of neighborhoods and schools to be effective. Ms. Fisher, it held, “cannot assert simply that increasing the university’s reliance on a percentage plan would make its admissions policy more race-neutral.”

Mr. Coleman of EducationCounsel predicted that the Texas decision would be a serious blow to the idea that class-rank-based admissions guarantees represent a way to resolve the debate over race-conscious admissions, because it holds that such policies should not be considered race-neutral and “are not a legal panacea.”

Richard D. Kahlenberg, a senior fellow at the Century Foundation who has called for selective colleges to use percent-plans and class-based affirmative action to promote diversity, said he feared such institutions would “simply rely heavily on race and ignore economic disadvantage in the future.”

A Court in Flux

Justice Kennedy’s decision to side with the University of Texas at Austin marked a shift from his previous position in the case, which the court had previously ruled on three years ago. He wrote the majority opinion in 2013, when the court voted, 7 to 1, to strike down a lower court’s summary judgment in Texas’ favor and to order the lower court to give the policy much stricter legal scrutiny than it had before. When the Supreme Court again heard oral arguments, in December, after taking the case back up to determine whether its admonition for more strict scrutiny had been heeded, Justice Kennedy was among several justices who voiced frustration with how little new information they had before them.

Justice Alito’s dissent, citing the majority’s references to the longevity of the case and to Ms. Fisher’s graduation from a separate university, said, “The majority cannot side with UT simply because it is tired of this case.”

Justice Elena Kagan recused herself from hearing the case, having weighed in on Texas’ behalf in a lower court in her previous position as solicitor general.

The late Justice Antonin Scalia, who died in February, had been harshly critical of Texas’ policy when the court heard oral arguments and probably would have been a fourth vote against the policy at hand. The vacancy created by his death leaves the court with four members strongly supportive of race-conscious admissions, three strongly opposed, Justice Kennedy as a swing vote, and an empty seat whose occupant almost certainly will be nominated by the winner of the November presidential election.

Peter Schmidt writes about affirmative action, academic labor, and issues related to academic freedom. Contact him at peter.schmidt@chronicle.com.