Court upholds race-conscious university admissions

The Supreme Court has ruled 4-3 to uphold the University of Texas’ admissions policy that allows consideration of applicants’ race as a factor in deciding which applicants to award places to, as part of an effort to increase the diversity of the student body.

The case gives the go-head for the limited use of affirmative action policies by colleges and universities.

It was brought by Abigail Fisher, a white applicant, who argued that the university had discriminated against her by denying her admission based on her race.

The University of Texas’ admissions policy is complex, and is designed to addresses underrepresentation of minorities in its classes, in a state with a 38% Hispanic and 12% black population. It includes first a state-wide policy of admitting the top 10% – or so – of students from every high school in the state; and then admitting other students from the state and elsewhere based on a range of other criteria, including academic attainment, race and ethnicity.

The latter category fill about 25% of first-year places and the practice is not uncommon in colleges and universities.

Justice Anthony M Kennedy, delivering the majority opinion of the court, noted that “a university is in large part defined by those intangible qualities which are incapable of objective measurement but which make for greatness… Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission.”

But dissenting from this majority opinion, Justice Samuel Alito said the university had not demonstrated the need for race-based admissions and the programme gave places to advantaged students ahead of poorer ones.

“This is affirmative action gone berserk,” he said, and “is simply wrong.”

United States President Barack Obama welcomed the decision. Speaking at the White House, he said: “I'm pleased that the Supreme Court upheld the basic notion that diversity is an important value in our society and this country should provide a high quality education to all our young people regardless of their background.

“We are not a country that guarantees equal outcomes but we do strive to provide an equal shot to everybody. And that's what was upheld today."

Fisher had brought the case when she was denied admission in 2008. The court had ruled on the case previously, in 2013, ordering the federal appeals court, which had supported the university’s policy, to look at the case again.

The court noted that Fisher, who was not in the top 10% of her high school class, had filed a suit alleging that the university’s consideration of race as part of its holistic-review process disadvantaged her and other Caucasian applicants, in violation of equal rights law. But the court ruled that the university had acted lawfully.

In a statement reported in The Washington Post, Fisher said: “I am disappointed that the Supreme Court has ruled that students applying to the University of Texas can be treated differently because of their race or ethnicity.

“I hope that the nation will one day move beyond affirmative action.”

The court ruled that the main reason Fisher was denied admission was not the consideration of race but the so-called Top Ten Percent Plan, which Fisher did not challenge, and which is mandated by the Texan Legislature.

However, the court also underlined that the university has a continuing obligation to periodically reassess the admission programme’s constitutionality and efficacy in the light of the university’s experience and data gathered since adopting the plan and is required to tailor its approach “to ensure that race plays no greater role than is necessary”.

It said that on the one hand “the decision to pursue the educational benefits that flow from student body diversity is, in substantial measure, an academic judgement to which some, but not complete, judicial deference is proper”.

But on the other, it said that when determining whether the use of race is narrowly tailored to achieve the university’s permissible goals, the education institution bears the burden of demonstrating that “available” and “workable” “race-neutral alternatives” do not suffice.

This is a reference to questions raised – and expressed in Justice Alito’s opinion – about whether the university had made enough effort to determine whether the policy made a difference to the level of enrolment of African-American, Hispanic or Asian-American students.

’Victory for students’

Felice J Levine, executive director of the American Educational Research Association or AERA, described the ruling as a “victory for students, colleges and the country”.

She said the ruling aligns with the overwhelming body of scientific research on the use of race as a factor in university admissions and the educational benefits of diversity in higher education.

“Empirical research strongly shows that student body diversity leads to important educational benefits, which also carry over to the workplace once students graduate, and that race-neutral policies are, by themselves, insufficient for advancing diversity.”

However, it is unlikely to be the last case on admissions policies that factor in race. The Project on Fair Representation, a pressure group that supported Fisher, has filed separate cases against Harvard University and the University of North Carolina at Chapel Hill in an attempt to block the use of such policies.

Levine said research provided by AERA and nine other scholarly societies elaborated on the limitations of race-neutral approaches alone.

“In the interest of our nation’s students and American society at large, we must pay special attention to what empirical research tells us about the benefits of diversity in higher education and the positive impact of admissions policies that take race into account,” she said.