Higher Education

Supreme Court decision on affirmative action could change college admissions nationally – and prompt more lawsuits

Top 10 percent rule wasn’t on trial but it may get a boost from the decision

Demonstrators gather outside the Supreme Court in Washington, Thursday, June 23, 2016. In a major victory for affirmative action, a divided Supreme Court upheld the University of Texas admissions program that takes account of race. The justices voted in favor of the Texas program by a 4-3 vote, an outcome that was dramatically altered by the death of Justice Antonin Scalia, who opposed affirmative action.

A long-awaited Supreme Court decision dealing with the politically thorny issue of affirmative action could encourage more state university systems to adopt policies that guarantee admission to the top graduates of local high schools.

The 4-3 decision handed down Thursday ruled in favor of the University of Texas-Austin and against the claims by Abigail Fisher that she was rejected because she is white. The court ruled that the university had used factors in addition to race in its effort to achieve diversity, and therefore could continue to use race as one element in admissions decisions.

Texas’s so-called Top 10 Percent policy was a major piece of that diversity effort, and evidence that the university had tried to use factors other than race to achieve a “critical mass” of diversity. The policy guarantees admission to students in roughly the to 10 percent of any Texas high school graduating class; because high schools tend to be segregated, it means more racial minorities get admitted to the university system.

Writing for the majority, Justice Anthony M. Kennedy noted that the university had “tried, and failed, to increase diversity through enhanced consideration of socioeconomic and other factors.” These factors were used in admissions decisions for students who didn’t qualify under the Top 10 Percent rule, or students from out of state.

By holding that many other factors besides race must be considered in admissions decisions, the Supreme Court may have given impetus to the idea of plans similar to Texas’s Top 10 Percent rule, said Anthony Carnevale, director of the Georgetown University Center on Education and the Workforce.

“Last time, the court said, ‘race matters but you can’t use race to get race,’ ” Carnevale said, referencing the 2013 decision. “This time they said, ‘race matters, but you can use race to get race, you just have to use class, too.’ The Court moved.”

The decision surprised many – Justice Kennedy had never sided in favor of an affirmative action case during his 28 years on the bench.  Legal and policy experts saw a significant shift since the 2013 decision the first time the court heard Fisher v. University of Texas, when the court sent the case back to the U.S. Appeals Court for reexamination. In that 7-1 decision, Justice Kennedy wrote that universities bear “the ultimate burden of demonstrating, before turning to racial classifications, that available workable race-neutral alternatives do not suffice.”

This time, Justice Kennedy wrote that a university ought to be able to decide what “intangible qualities” it needs, adding, “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.”

“Something strange has happened since our prior decision in this case,” Justice Samuel A. Alito Jr. wrote in his dissent.

The Top 10 Percent rule was not challenged by Abigail Fisher, the plaintiff in Fisher v. University of Texas, a white Texan who argued that UT-Austin had denied her admission in 2008 on the basis of her race. She objected to race being used as one of the admissions criteria for remaining students.

But something like the Top 10 Percent rule could be used to demonstrate that a university is striving to use a variety of methods to increase diversity.

There are about 20 states where racial diversity in the overall population is widespread enough that a top 10 percent-style plan could help increase diversity in state universities, said Carvenale.

Related: Supreme Courts Justices question when and whether diversity will be achieved

Thursday’s ruling could also lead to more lawsuits. It does not give free rein to affirmative action polices, as it notes that the decision “does not necessarily mean the University may rely on that same policy without refinement. It is the University’s ongoing obligation to engage in constant deliberation and continued reflection regarding its admission policies.”

In this way, the precedent set by the decision may not automatically carry over to other colleges – each institution’s policy would have to be examined individually, to ensure that officials had done everything in their power to create diversity without using race as a consideration.

Advocates of race-conscious admissions praised the decision as opening the door to more widespread consideration of race in college admissions. Still, Marisa Bono, a lawyer with the Mexican American Legal Defense and Education Fund also acknowledged that “it doesn’t it settle the issue of affirmative action.”

Conservatives for the most part said they were disappointed in the decision, but tried not to portray it as a defeat.

“The decision warns UT they need to be constantly reassessing whether they have to really use race,” said Roger Clegg, president and general counsel of the Center for Equal Opportunity.

Because universities will continue to have to show that they have sought means other than race of increasing diversity, Fisher will not end the challenges to race-based admissions.

Two cases, which are in the discovery phase and were partially put on hold pending the outcome of Fisher are now expected to go forward. They were both filed by Students for Fair Representation, which is headed by Edward Blum, who also played an advisory role in the Fisher case.

Both lawsuits seek to abolish affirmative action altogether, although neither challenge the goal of seeking a diverse student body. One is against Harvard University and the other targets admission policies at the University of North Carolina at Chapel Hill.

“The Fisher opinion was a narrow one directed to UT’s unique policies and will not have any bearing on the lawsuits against UNC or Harvard,” said Blum.

Only seven justices voted because the late Justice Antonin Scalia’s seat is still vacant, and Justice Elena Kagan recused herself; she had worked on the Fisher case when she was United States solicitor general.

The 4-3 ruling creates precedent and applies to all public universities and the vast majority of private institutions since most receive federal funding through funding streams like Pell grants.

The issue facing the court was not really the specifics of whether Abigail Fisher should have been admitted to the University of Texas-Austin; it was whether it is necessary to use race at all as a factor in admissions to maintain diversity on the campus. Oral arguments, in December, also focused on how to define and measure what level of diversity is sufficient.

The Supreme Court in past decisions has allowed colleges and universities to consider race in admissions to create a “critical mass” of minority students on campus, although quotas were not permissible. The student population at the UT-Austin currently is 4 percent African-American and 22 percent Latino. And 90 percent of common-size classes have one or fewer African-American students, said the university’s lawyer, Gregory Garre.

Related: Supreme Court leaves affirmative action intact, for now

In one of his more controversial comments, Justice Scalia made the claim that most black scientists don’t come from selective universities like UT-Austin but “from lesser schools where they do not feel that they’re being pushed ahead in — in classes that are too fast for them.” He added, “I don’t think it stands to reason that it’s a good thing for the University of Texas to admit as many blacks as possible.”

Scalia was referencing a theory known as “mismatch,” which argues that polices like affirmative action do a disservice to “underprepared” students, who flounder academically.

A study from the Georgetown University Center on Education and the Workforce released Tuesday argues that the opposite is true. Examining 468 selective universities, it found that students with average SAT scores (about 1000) had a 77 percent chance of graduating from a selective university – compared to a 51 percent chance at an open-admission college.

Had he lived, Justice Scalia would likely have sided with the dissenters. But a 4-4 decision would still have kept UT-Austin’s policy in place, since a tied decision means the lower court’s ruling stands.

Joining Justice Kennedy in the majority were Justices Stephen G. Breyer,  Ruth Bader Ginsburg and Sonia Sotomayor. Dissenting were Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr. and Clarence Thomas.

This story was produced by The Hechinger Report, a nonprofit, independent news organization focused on inequality and innovation in education. Read more about Higher Education.

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Meredith Kolodner

Meredith Kolodner is a staff writer. She previously covered schools for the New York Daily News and was an editor at InsideSchools.org and for The… See Archive

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