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Update: Supreme Court Decision on Fisher v. University of Texas

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On Thursday, the U.S. Supreme Court upheld University of Texas at Austin’s race-conscious admissions policy in its second consideration of a Fisher v. University of Texas appeal. As a reminder, the case stemmed from a lawsuit by Abigail Fisher, a white applicant to UT Austin who claimed she was unfairly rejected due to the university’s affirmative action admissions program. Since our last update, when the Supreme Court ordered the U.S. Court of Appeals for the Fifth Circuit to reconsider the case, the appellate court affirmed their decision in favor of UT, and Fisher again appealed that court’s decision to the Supreme Court. For additional background on this case, please see our previous two posts, found here and here.

The case was decided by an unusual 4-3 margin due to Justice Kagan’s recusal and the recent death of Justice Scalia. According to the NY Times, Justice Kennedy, who had never before voted to uphold an affirmative action plan, wrote for the majority that “…it remains an enduring challenge to our nation’s education system to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity.”

This decision marks the end of the Fisher case, but the debate over affirmative action in higher education carries on.

Stay tuned to the OPBlog for updates.

Supreme Court Hears Michigan Affirmative Action Case

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On Tuesday, the U.S. Supreme Court appeared to be in favor of upholding a Michigan referendum, known as Proposition 2, which banned the use of affirmative action in the state’s public colleges and universities. The case, Schuette v. Coalition to Defend Affirmative Action, is not about whether it is permissible for public colleges to consider race and ethnicity in admissions, but whether it is legal for voters to bar such consideration. For background information about this case, please see our previous post.

Tuesday’s arguments focused primarily on a piece of the Equal Protection Clause, known as the “political process doctrine,” which states that political processes cannot be altered in a way that puts minorities at a disadvantage. Opponents of Proposition 2, contend that, under the measure, minority groups who want to reinstate affirmative action must launch a difficult and expensive campaign to re-amend the state constitution, whereas Michigan citizens seeking changes to other university admissions policies are free to simply lobby university regents. This, they argue, places an unfair and disadvantageous burden on minorities.

Swing vote, Justice Anthony M. Kennedy, expressed doubts about whether Proposition 2 truly violates the political process doctrine and only two liberal members of the court voiced major criticisms of the Michigan measure. Thus, with Justice Elena Kagan recused from the case, the numbers point toward the court upholding Proposition 2. Such a decision would effectively preserve similar bans adopted by voters in Arizona, California, Nebraska, Oklahoma, and Washington; by lawmakers in New Hampshire; and by the public university governing board in Florida. In addition, it could theoretically embolden campaigns for similar ballot measures
elsewhere.

While it seems clear the Justices will rule in favor of Michigan, it is less clear whether the Justices are interested in reversing the political process doctrine, which dates back more than 40 years. In 1982, for example, the justices ruled against a Washington referendum that attempted to prevent Seattle from using a local busing program to desegregate schools. NPR reports that Michigan Solicitor General, John Bursch, “urged the Supreme Court to reverse the Seattle decision and others like it, if necessary.”

We’ll post updates as more information becomes available.

Education and Justice Departments Clarify Fisher v. UT Ruling

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On Friday, the Obama administration gave some clarity to the Supreme Court ruling in Fisher v. University of Texas, as the decision had not provided a direct answer about the constitutionality of race-conscious admissions policies in higher education. Instead, the ruling had underscored the necessity of “strict scrutiny”—a term that sparked concern and confusion among some college officials. In a “Dear Colleague” letter, the Education and Justice Departments clarified:

An individual student’s race can be considered as one of several factors in higher education admissions as long as the admissions program meets the well-established ‘strict scrutiny’ standard; specifically, the college or university must demonstrate that considering the race of individual applicants in its admissions program is narrowly tailored to meet the compelling interest in diversity, including that available, workable race-neutral alternatives do not suffice.

In other words, colleges can continue considering race in admissions decisions as long as race-neutral alternatives would not achieve “sufficient diversity,” as Justice Kennedy put it in the case’s majority decision. Determining what constitutes “sufficient” diversity is where much of the remaining ambiguity lies.  However, in their letter, the Departments pledged to provide “technical assistance” to institutions as they interpret the ruling and asserted that previously-provided guidance on affirmative action still holds true.

As Inside Higher Ed reported, legal experts believe the court’s “strict scrutiny” requirement will make it difficult for UT and many other institutions to successfully defend their use of race in admissions. However, the Obama administration seemed to encourage colleges to maintain their diversity efforts. “The Departments of Education and Justice stand ready to support colleges and universities in pursuing a racially and ethnically diverse student body in a lawful manner,” the letter stated.

For more information, see the Departments’ Q&A document and the article by Inside Higher Ed, and stay tuned to our blog for updates.

Supreme Court Decision on Fisher v. University of Texas

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On Monday, the Supreme Court ruled that Fisher v. University of Texas (UT), the case on UT Austin’s race-conscious admissions policy, be sent back to an appeals court for further scrutiny. The case stemmed from a lawsuit by Abigail Fisher, a white applicant to the university who claimed she was unfairly rejected due to UT Austin’s affirmative action admissions program. For more background on this case, please see our previous two posts, found here and here.

The court’s 7-to-1 decision did not provide a direct answer about the constitutionality of UT Austin’s admissions practices. Instead, it ordered the U.S. Court of Appeals for the Fifth Circuit to reconsider the case on the grounds that the appeals court had failed to apply “strict scrutiny” (a rigorous standard requiring that both an important goal and a close fit between means and ends be identified) in its review of the case and subsequent ruling in favor of UT. Justice Ruth Bader Ginsburg was the only dissenting voice; she argued that the appeals court was right to support UT’s policies.

According to the NY Times, Justice Kennedy wrote for the majority that courts reviewing affirmative action programs must, “verify that it is necessary for a university to use race to achieve the educational benefits of diversity.” This necessitates, he said, “a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications.”

The Supreme Court’s ruling did not displace its 2003 decision in Grutter v. Bollinger, which found educational diversity to be of sufficient importance to overcome the government’s standard ban on racial consideration. However, as Inside Higher Ed reports, legal experts believe the court’s demanding “strict scrutiny” requirements will make it difficult for UT and many other institutions to successfully defend their use of race in admissions.

The debates surrounding Fisher v. UT and affirmative action in higher education as a whole are far from over. Many expect the Texas case to return to the Supreme Court after a new review by the appeals court.  We will keep you posted with any updates.

Supreme Court Takes Up Second Affirmative Action Case

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The U.S. Supreme Court has agreed to consider whether a 2006 Michigan referendum to ban public colleges from using race or ethnicity in admissions is constitutional. This is the second affirmative-action case on the court’s docket —the first being Fisher v. University of Texas at Austin (discussed in a previous blog). If the Supreme Court declares the ban, known as Proposition 2, unconstitutional, similar bans in Washington and five other states could also be invalidated.

Inside Higher Ed nicely summed up the difference between the two affirmative action cases: “The Texas case is about the extent to which public colleges and universities may consider race and ethnicity in admissions, while the Michigan case is about the extent to which voters can bar such consideration.”

The Supreme Court accepted the Michigan case, Schuette v. Coalition to Defend Affirmative Action, after the state’s attorney general, Bill Schuette, appealed a November ruling by the U.S. Court of Appeals for the Sixth Circuit. The appeals court struck down Proposition 2 in an 8-7 vote, on the grounds that it “undermines the Equal Protection Clause’s guarantee that all citizens ought to have equal access to the tools of political change.” Under Proposition 2, minority citizens who want public university admissions to consider race must launch a burdensome ballot campaign, whereas groups seeking other university policy changes are free to simply lobby.

Schuette argues that Michigan’s measure and the Equal Protection Clause both protect a fair political process, whereas “preferential treatment based on race (which necessarily means discrimination against other races)… focuses entirely on achieving a particular outcome (here, an admissions outcome), even at the expense of making the process discriminatory.” Michigan’s measure, he says, “does not endorse race-based policies; just the opposite, it stops discrimination based on race.”

The Supreme Court will hear the Michigan case in its term starting in October.  Its ruling in the Texas case is expected this spring or summer, but could occur at any time.

NIH Proposals Could Impact Biomedical Research

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On Friday, the National Institutes of Health (NIH) approved a rough implementation plan for a set of initiatives that could affect biomedical studies and the faculty, postdoctoral, and student researchers who conduct them. Three working groups proposed the plan back in June and mean for it to guide, diversify, and improve biomedical research through new grant programs and guidelines.

The biomedical workforce working group recommended that the NIH:

  • Help students prepare for careers by providing institutions with additional grants for training and professional development;
  • Encourage graduate students to complete their degrees on-time by capping the number of years they can receive NIH funds;
  • Urge institutions to financially commit to their researchers by slowly reducing the percentage of NIH funds that go toward faculty salaries; and
  • Support the decision-making of prospective graduate students and postdoctoral researchers by asking that NIH-funded institutions provide data on student career outcomes.

The working group on diversity was founded after an NIH report revealed that black researchers were underrepresented in grant applicant pools and that, when they did apply, they were significantly less likely to receive NIH grants relative to their white counterparts. The group called for the NIH to: 

  • Help bridge diversity gaps by implementing a system of career mentorship “networks” for underrepresented minority students;
  • Support under-funded colleges that have a history of training underrepresented minorities in the sciences by considering them for a “well-funded, multi-year” competitive grant program;
  • Establish a committee to address implicit or explicit biases in the NIH peer review system; and
  • Experiment with completely anonymizing grant applications by removing the names of researchers and their institution.

Lastly, the working group on data and informatics asked that the NIH develop a better framework for information exchange and fund more fellowships and training in statistics and other quantitative areas.

These initiatives may sound familiar as many have been pursued, yet subsequently aborted in the past due to a lack of funding. This time may be no different if Congress fails to resolve the fiscal cliff and mandatory spending cuts that could slash the NIH’s budget by 8.2 percent in the coming year.

Supreme Court Justices Hear (and Question) Arguments in Fisher v. University of Texas

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The U.S. Supreme Court heard arguments yesterday in the landmark affirmative action case Fisher v. University of Texas (UT) (please see our previous blog for more information). Four Justices will need to support UT if it and, potentially, public colleges across the nation are to continue using race and as a factor in admissions decisions. Three justices hearing the case have historically supported affirmative action. A fourth supporter, Justice Kagan, recused herself because she played a role in preparing the Obama administration’s UT-supportive brief. The other five justices have typically expressed doubt over affirmative action’s value. Of these, Justice Kennedy is regarded as the most plausible swing vote. A 4-4 tie would uphold the federal appeals court ruling that UT’s program is constitutional.

Justices seeming to favor Fisher questioned:

  • If UT could know it had achieved a desired level of diversity without setting a target and verifying its students’ self-reported race; and,
  • Whether an admission process is truly fair if it benefits minority students from affluent backgrounds as much those from poverty. Justice Alito Jr. said: “I thought the whole purpose of affirmative action was to help students who come from underprivileged backgrounds.”

Justices seeming to favor UT questioned:

  • Whether Ms. Fisher’s suit is even legal, given UT’s statement that she would have been rejected regardless of race considerations; and,
  • Why the Court should change its 2003 decision on Grutter v. Bollinger—“A case into which so much thought and effort went and so many people around the country have depended,” said Justice Breyer.

Both sides agreed that the Court may have led colleges astray in 2003 by ruling that applicants’ race could be considered in order to assemble a “critical mass” of minority students. They said the term “critical mass” (defined by Grutter as the sufficient number of minority students to ensure they feel comfortable speaking out, not isolated) encourages colleges to aim for some numerical threshold of minority students, but such an approach could violate the Court’s ban on college’s use of quotas. After the arguments, the esteemed SCOTUSblog offered that: “Affirmative action is alive but ailing, the idea of ‘critical mass’ to measure racial diversity is in very critical condition, and a nine-year-old precedent may have to be reshaped in order to survive.”

The Court is expected to decide the case in spring or summer of next year.

Supreme Court Case Calls into Question the Use of Race in Higher Ed Admissions

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On October 10th, the U.S. Supreme Court will hear arguments in Fisher v. University of Texas (UT)—the first Supreme Court case on the use of race in higher education admissions since Grutter v. Bollinger in 2003. The case asks that the Court either declare UT’s admissions policy to be in violation of Grutter v. Bollinger or entirely overrule their 2003 decision that race could play a limited role in universities’ admissions policies. An overruling of Grutter could effectively end affirmative action at public universities.

Although around 80 percent of UT’s admissions decisions are made via a unique, race-blind method called the Top 10 Percent Plan, the case challenges whether UT’s “holistic file review” system (which is used to fill the remaining 20 percent of openings) exceeds their right to consider race and ethnicity. Under the holistic file review system, admissions officers and hired readers assess the full application submitted, reading essays and recommendation letters, assessing writing skills, and importantly, seeking to understand the context in which SAT scores and GPAs were earned. Race is one of many contextual factors considered. The UW adopted a race-neutral version of the holistic approach when it became clear, several years after the passage of I-200, that a composite score admissions platform (which essentially scores applicants based on GPA and SAT or ACT scores) insufficiently accommodated diverse applicants. Over time, the UW’s holistic review, even without a race factor, was found to significantly increase the diversity of entering classes.

In fact, schools across the country use similar systems to foster diversity in their schools, and many have voiced their avid support for UT. In August, the American Council on Education filed a brief on behalf of itself and 39 higher education groups backing UT. The Obama administration also filed a UT-supportive brief, as did a group of U.S. senators, and a number of states (including California, where voters barred public universities from considering race in admissions).

However, last Friday, opponents of UT’s holistic review caught a break when the Brookings Institute, a nonprofit public policy organization based in D.C., presented new research suggesting that eliminating the consideration of race would have a lesser impact on minority students than some believe. In addition, their research implies that under affirmative action, minority students may actually achieve less academic success than they would otherwise. The studies received criticism for their methodology and lack of peer-review, but have still caught the attention of the media and public.

Debates will likely continue through next month. If the Court rules in favor of Fisher, the use of holistic review across the country may be called into question, although the UW’s race-neutral model should be significantly less vulnerable.