The Obama administration on Monday joined a long list of higher-education associations, civil-rights groups, and other organizations in urging the U.S. Supreme Court to uphold race-conscious admission policies in a case involving the University of Texas at Austin.
As of late Monday, the deadline for such filings, the Supreme Court had received more than 50 amicus curiae—or “friend of the court"—briefs backing the University of Texas’ consideration of race in undergraduate admission decisions. Among those who urged the court to leave the Texas policy intact were 17 U.S. senators, 66 U.S. representatives, 15 state governments, about 100 colleges that fear their efforts to promote diversity may be at risk, and relatives of the late Heman Marion Sweatt, whose lawsuit challenging his race-based exclusion from Texas’ law school led to a landmark 1950 Supreme Court ruling helping to usher in the desegregation of American higher education.
The outpouring of support for the race-conscious admission policies is nearly as large as it was the last time the Supreme Court considered them, in the lead-up to two 2003 rulings involving the University of Michigan at Ann Arbor. As with the Michigan cases, the number of briefs expressing support for race-conscious admission policies exceeds the number opposing them by a ratio of more than 2 to 1. Although the Supreme Court hardly decides cases by weighing each sides’ amicus briefs on a scale, the support shown for Michigan played enough of a role in the court’s ruling to preserve race-conscious admissions nine years ago to stir hopes that the court can be so swayed once again.
The Supreme Court is expected to hear oral arguments in the case now before it, Fisher v. University of Texas, No. 11-345, in October. Supporters of the lawsuit’s plaintiff, the rejected Texas applicant Abigail Noel Fisher, submitted their briefs to the court in May. The court’s composition has changed since it upheld the use of race-conscious admissions in its 2003 Grutter v. Bollinger ruling, involving Michigan’s law school, but it remains narrowly divided on the issue.
Justice Anthony M. Kennedy is widely regarded as the key swing vote who will determine whether the court upholds the Texas flagship’s policy, strikes down the policy as falling outside guidelines offered by the majority opinion in Grutter, or heeds some conservative groups’ pleas to overrule its own Grutter precedent and declare that such policies violate the 14th Amendment and the Civil Rights Act of 1964.
Marshaled Defense
The Obama administration’s brief takes on added significance in having the potential to give the affirmative-action debate greater prominence in the presidential race. But, rather than shying away from the issue, the administration mounted a more sweeping defense of Texas’ policies than it had offered when the case was heard by the U.S. Court of Appeals for the Fifth Circuit.
The brief that the U.S. solicitor general, Donald B. Verrilli Jr., submitted to the court on Monday was signed not just by lawyers for the Education and Justice Departments, which typically weigh in on such matters, but by lawyers for the Departments of Commerce, Defense, Health and Human Services, and Labor.
It says that “the United States has a critical interest in ensuring that educational institutions are able to provide the educational benefits of diversity,” and argues that such diversity is recognized by the military and other federal agencies as crucial in promoting national interests such as cohesion within the armed forces, a health-care system that sufficiently tends to minority health issues, and law-enforcement and national-security agencies effective in dealing with a diverse American population and the world at large.
Echoing the arguments that the Obama administration’s lawyers made on Texas’ behalf in the Fifth Circuit, the brief also holds that the university’s race-conscious admission policy is narrowly tailored to serve a compelling government interest. It backs the university’s argument that its admissions process cannot rely on race-neutral means to achieve sufficient levels of diversity without sacrificing educational quality.
In a review that probably serves as a harbinger of criticisms to come, the brief was called politically “very tin-eared” by Roger B. Clegg, president of the Center for Equal Opportunity, a group that in May signed onto a brief urging the court to overturn Grutter. “The arguments that are made would be unpersuasive to the vast majority of Americans,” said Mr. Clegg, who said that most national interests cited in the brief involve training in specialized fields not at issue as the court weighs an undergraduate admission policy.
Mr. Clegg said he was confident “conservatives will point out the problems with this brief,” but added, “that is not to say that Republican politicians will.”
Affirmative action has been a wedge issue within both the Democratic and Republican Parties, and its potential to divide the GOP was evident in the support for Texas expressed in a brief filed on Monday by more than 50 major American businesses, including the Dow Chemical Company, Halliburton Energy Services Inc., and the Northrop Grumman Corporation. Their brief argues that educational diversity represents an even more compelling government interest now than it did when the Grutter case was decided, because in the interim American society has become more diverse and American businesses have expanded more globally.
Against Race-Neutrality
Among the many in higher education who expressed support for the University of Texas, the American Council on Education filed a brief signed by 39 other groups, including the American Association of State Colleges and Universities, the American Association of University Professors, and the Council for Higher Education Accreditation. Its brief, like the one from major businesses, argues that the need for diversity in education has become even more pressing since the Grutter decision.
Like many of the briefs signed by individual colleges, it also argues that the Supreme Court should continue to respect the autonomy of colleges in matters such as admission decisions, which it described as a key element of academic freedom.
Mark G. Yudof, who formerly served as president of the University of Texas system and now is president of the University of California, joined the 10 chancellors of his system’s campuses in filing a brief that argues the University of California has been unable to maintain sufficient levels of diversity through race-neutral means since that state’s voters passed a 1996 amendment to California’s Constitution banning the use of racial preferences by public colleges and other public agencies.
A group of 37 highly selective private colleges, including Amherst, Bryn Mawr, and Pomona, submitted a brief that says a court decision striking down race-conscious admissions as in violation of Title VI of the Civil Rights Act would affect private institutions as well as public ones and cause private colleges to become more racially segregated. Eight Roman Catholic colleges, including Georgetown University and the University of Notre Dame, argue in a brief that they cannot achieve sufficient levels of racial and ethnic diversity in enrollment with programs geared toward recruiting and serving economically disadvantaged students.
The Houston Community College system argues in its brief that a Supreme Court ruling against the University of Texas at Austin would hinder efforts by its own minority students to transfer there.
Rights and Wrongs
Among others who filed briefs on Texas’ behalf, the NAACP Legal Defense and Educational Fund joined organizations representing current and former black students at the University of Texas in arguing that excluding race as a factor in the review of applicants demeans black students by sending the message that a crucial element of their identity is irrelevent.
The Asian American Legal Defense and Education Fund joined several other groups for Asian-Americans and Pacific Islanders in disputing other such groups’ assertions that the populations they represent suffer discrimination under race-conscious admission policies. They argue that Texas does not discriminate against Asian-American applicants, and that where such applicants are unfairly held to higher standards than others, the culprit is not affirmative action but “negative action,” or outright discrimination against them.
The Anti-Defamation League, which criticized race-conscious admissions in a brief filed on behalf of neither side in the Grutter case, submitted a brief arguing that the Texas admission policy lacks elements, such as quotas, that led the group to oppose other colleges’ race-conscious policies in the past.
