Black and Hispanic student activists demonstrate outside the U.S. Supreme Court whenever it debates affirmative action in college admissions, but this time around, they are already protesting throughout the nation.
As the court prepares to hear oral arguments on Wednesday in Abigail Noel Fisher v. University of Texas at Austin (No. 14-981), a lawsuit challenging that institution’s consideration of race in admitting undergraduates, colleges elsewhere are on edge. They have been rocked by a wave of demonstrations by minority students who complain of feeling unwelcome and isolated on campuses.
At the nearly 70 colleges where such protesters have issued formal lists of demands, the most common include calls for big increases in the share of students and faculty members who are black, Hispanic, or Native American.
A coalition of educators concerned with minority students’ access to college warned in a friend-of-the-court brief that the sense of isolation such students are complaining about will only worsen “if race-conscious college-admission processes are terminated too soon.”
Seldom have the questions being asked by the Supreme Court seemed so divorced from the reality outside its doors. The campus protests are part of a broad social movement, sparked by police shootings of unarmed black men, that denounces structural and systemic racism.
Yet the justices have taken up a lawsuit predicated on the belief that American society should focus less, not more, on remedying the effects of discrimination. They’re being asked to second-guess a public university’s efforts to ensure that members of minority groups stand a good chance of passing through its doors.
The Supreme Court’s ruling in the case, expected by next summer, almost certainly will do nothing to make it easier for colleges to meet student protesters’ demands. If anything, the court appears likely to hand down a decision that imposes new restrictions on colleges’ ability to give extra consideration to minority applicants, further hindering the already meager flow of black, Hispanic, and Native American people into the advanced-degree programs that train college professors and administrators.
The Shadow of the Past
Ms. Fisher’s lawyers argue that the Austin campus does not need to consider applicants’ race because it achieves sufficient diversity without doing so, through a state law that guarantees admission to students in the top tenth of their high-school class.
Briefs filed in support of Texas by dozens of colleges and higher-education organizations say other institutions cannot achieve enough diversity through race-neutral means without compromising their educational missions. A group of 13 universities argued that their use of admissions guarantees based on some objective measure, such as class rank or SAT score, would “quickly produce unmanageable numbers of admittees” and would undermine their goal “of admitting a student body with a diverse array of talents, interests, backgrounds, and worldviews.”
The University of Texas accuses Ms. Fisher’s lawyers of ignoring the history of that institution, which remained off-limits to black students under a state law struck down by the Supreme Court in 1950, and, they argue, continues to struggle to overcome its reputation as unwelcoming to members of minority groups.
Some briefs filed in support of Texas note that the university’s system relies on a high level of housing and school segregation to produce diversity through the top-10-percent plan. Another brief characterizes the difficulty colleges face in trying to achieve diversity without race-conscious admissions as symptoms of the same history of discrimination that gave rise to the recent movements to end racial bias in the criminal-justice system.
Such a focus on dealing with historical and societal segregation carries legal risks for Texas, however. The Supreme Court has rejected remedying such ills as a justification for race-conscious admissions, leaving the educational benefits of such policies as their only allowable justification.
Briefs from the California Association of Scholars and two of the U.S. Commission on Civil Rights’ eight members say Texas’ supporters betray its motives. Its policy has less to do with pedagogy than “with indulging the tastes of legislators, accreditors, donors, students, and others for what they superficially regard as social justice,” the two commissioners’ brief says.
History’s Legacies
Several Supreme Court precedents likely to shape the pending Texas decision already loom as obstacles to any college’s efforts to bring about steep increases in minority enrollment.
Beginning with its 1978 ruling in Regents of the University of California v. Bakke, the court has long held that colleges can give only slight consideration to race, and only for the sake of advancing students’ educational interests, not to remedy societal discrimination or to try to ensure that student bodies mirror diversity in the broader population.
In a pair of 2003 rulings involving the University of Michigan, the court barred colleges from using admissions formulas that automatically reward applicants for minority status, and said colleges must give good-faith consideration to race-neutral policies that help promote diversity.
The Supreme Court initially weighed in on the Fisher case two years ago, ruling 7 to 1 that lower federal courts had failed to conduct a “searching examination” to ensure that no race-neutral alternatives would suffice. As it considers the case again, Ms. Fisher’s lawyers are urging it to “remind universities that the use of race in admissions must be a last resort — not the rule.”
The court also has left intact formidable political obstacles to colleges’ diversity efforts, by last year upholding bans on race-conscious admissions policies approved by voters in six states: Arizona, California, Michigan, Nebraska, Oklahoma, and Washington.
Factor in Florida, where the state-university system’s governing board barred its campuses from considering applicants’ race, and New Hampshire, where such policies are barred under state law, and about two in five Hispanics and one in five blacks live in states where public colleges may not give them extra consideration in admissions decisions. Briefs from the University of Michigan and from top administrators at the University of California both blame their states’ bans for big dips in their enrollment of black and Hispanic students.
Leaning Right on Race
Among the nine-member Supreme Court’s four reliably liberal voices on issues of race, Justice Elena Kagan has recused herself from hearing the Texas case because she weighed in on the university’s behalf in a lower court when she was U.S. solicitor general. Of the court’s more-conservative members, the most likely swing vote, Justice Anthony M. Kennedy, wrote the majority opinions in both the court’s previous Fisher ruling and its 2014 decision to uphold state bans on racial preferences.
Although Ms. Fisher’s lawyers have not asked it to do so, the court could even end up heeding calls from conservative groups to ban such policies as impossible to square with federal antidiscrimination laws. In past decisions on affirmative action, some of the court’s conservative members have urged their colleagues to take such a step.
Some statements in their opinions — such as assertions that jobs should go to the most-qualified applicants — could get them accused of committing a “microaggression” if uttered aloud at their alma maters today. Knowing as much could leave them skeptical of assertions that racial diversity on campuses fosters the exchange of different ideas.
Fifty years have passed since Yale University adopted the nation’s first race-conscious admissions policies, in response to the urban uprisings and black-student unrest of that era. Researchers debate whether such policies help build better race relations or fuel tensions. The current campus unrest, however, serves as a reminder that, whatever their virtues, they have not managed to bring lasting racial peace.
Peter Schmidt writes about affirmative action, academic labor, and issues related to academic freedom. Contact him at peter.schmidt@chronicle.com.
