Race and college admissions in the wake of the Fisher ruling

Race and college admissions in the wake of the Fisher ruling

According to Merriam-Webster, a compromise is “something intermediate between or blending qualities of two different things.” In politics, it’s often defined as a result in which both sides are unhappy. By either of these standards, the U.S. Supreme Court compromised in its surprisingly narrow ruling in Fisher v. Texas. Most observers, myself included, expected a bitterly divided ruling, 5-3 or 4-4. Instead, the Court ruled 7-1 (Justice Kagan recused herself) that the lower court must examine the University of Texas’ (UT) use of race in admissions more closely, and that federal courts must examine affirmative action programs but not bar their existence. Yesterday’s ruling dissatisfied anyone who thinks race should never play a role in college admissions. On the flip side, it also disappointed people who believe that courts should play a minimal role in reviewing schools’ admissions processes.

Fisher v. Texas involves Abigail Fisher, a Caucasian student rejected by the UT in 2008. Fisher sued UT, claiming that its use of race in its admissions decisions violated the 14th Amendment’s Equal Protection Clause. After a trial court ruled for the university, the U.S. Court of Appeals for the 5th Circuit agreed with the trial court. The 5th Circuit Court applied the standard from the last major Supreme Court case on the use of race in higher education, Grutter v. Bollinger. In Grutter (2003), the Supreme Court upheld the University of Michigan’s use of race as a factor in law school admissions. Diversity itself justified Michigan’s policy, and the court deferred to the decisions made by the schools.

On Monday, the Supreme Court didn’t directly overrule Grutter. Instead, it held that the lower court provided too much deference to UT’s admissions policy. Grutter permits colleges and universities to have racial diversity as a goal. However, this goal must be narrowly tailored, meaning that universities must now try to find “race neutral” alternatives to achieve diversity. UT had employed a “10% plan” to achieve diversity, which offered admission to the top 10% of high school graduates, regardless of the school they attended. They also used race as a factor, in compliance with Grutter, for certain undergraduate majors with lower percentages of underrepresented minorities.

So why are supporters of affirmative action unhappy with the ruling? It’s more restrictive than Grutter v. Bollinger, since Grutter didn’t require that colleges and universities first try a race-neutral plan to achieve diversity (for example, a 10% plan, or a giving students preference based on socioeconomic status). If the Supreme Court merely followed Grutter, the majority opinion would look like Justice Ruth Bader Ginsburg’s tartly worded dissent, in which she argued that UT complied with the controlling legal standard (Grutter), so she saw no need for the court to reverse the 5th Circuit’s decision.

Clearly, “strict scrutiny” just got stricter. The court now requires:

…a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications… [The reviewing court] must be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity. [On this point,] the university receives no deference.

The ruling puts an additional burden on schools to justify their use of racial preferences. In Grutter, the Supreme Court majority did not ask if Michigan first pursued race-neutral alternatives.

Opponents of affirmative action are just as unhappy. They had hoped that the justices would overrule Grutter v. Bollinger completely, finding that colleges and universities could never use race in admissions. Opponents of affirmative action often call for the total elimination of race as a factor in admissions and this ruling didn’t go that far (although separate concurring opinions, one by Justice Thomas, one by Justice Scalia, called for just that, but they did not command a majority).

In the wake of the Fisher ruling, colleges and universities may seek out race-neutral alternatives to avoid being dragged into court over a violation of the new standard. Richard Kahlenberg, Northeastern Doctor of Law & Policy Distinguished Guest Lecturer and a senior fellow at the Century Foundation, believes that preferences based on economic disadvantage, rather than race, can promote racial diversity. Other experts disagree: Alan Krueger, President Obama’s head of his Council of Economic Advisers, acknowledged that race and class are correlated, but said, “it is not strong enough to function as a useful proxy for race.” Kahlenberg believes that Fisher will help low income and working class students of all races. While race certainly matters, yesterday’s ruling may help curb our growing class divide in American higher education.

Fisher highlights the importance of programs like the College of Professional StudiesFoundation Year. Foundation Year is a program that helps City of Boston high school graduates who aspire to attend college but don’t have the academic preparation and financial resources to enroll and succeed. It is not “race based,” but students in Foundation Year are incredibly diverse. In the wake of Fisher, I expect colleges and universities to model programs like ours to achieve their goals of diverse campuses.

Race still matters. All proxies for race (economic status, etc.) are not quite as powerful as race itself. Our national focus on of the use of race obscures other forms of “affirmative action” that do not result in blockbuster lawsuits. Especially at elite colleges, admissions offices favor children of alumni and student-athletes. These forms of affirmative action do not lead to Supreme Court cases. Fisher forces colleges to come up with new means but does not eliminate the ends: Diverse campuses are good for all. College campuses that include students with a wide range of backgrounds, experiences and viewpoints benefit the entire community.

About Dan Urman

Daniel J. Urman is a faculty member of the Doctorate in Law and Policy program at Northeastern University College of Professional Studies. He developed and teaches undergraduate and graduate courses in the areas of political science and law and public policy at Northeastern. Mr. Urman was a Marshall Scholar at the University of Oxford.

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