Colleges must meet high bar in showing need for racial preferences
By Justin Pope
AP Education Writer
The Supreme Court’s ruling on the use of racial preferences in college admissions left many questions unanswered: Is the University of Texas’ admissions policy that uses race as a factor constitutional? And do colleges around the country need to change how they use racial preferences to achieve a diverse student body?
Those and other questions will have to wait, at least until the next time the court considers an affirmative action case.
But the ruling was nonetheless significant. On the one hand, it validated earlier court rulings that racial diversity is a “compelling state interest” and that colleges may use racial preferences to achieve it. However, the justices also sent a sharp reminder to higher education. The 7-1 decision, written by Justice Anthony Kennedy, showed virtually the entire court believes that colleges must, at the very least, meet a high bar in demonstrating such preferences are absolutely necessary, and that race-neutral methods of enrolling a diverse student body won’t create such a student body on their own.
A look at some of the key questions and possible results of the ruling.
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Q. What was this case about?
A. The focus of the case was a University of Texas admissions policy, used to select a small portion of the class at its flagship Austin campus, which took race into account as one factor among many. Abigail Fisher, a rejected white applicant, sued. But in deciding her case, the court also had the opportunity to consider the broader issue of how far colleges nationally can go in taking race into account in their admissions policies.
The key question is how to resolve sometimes conflicting rights — the educational right of a college to create a diverse class it believes will benefit all students, versus the equal protection right of students not to face discrimination on the basis of race.
Q. What did the court decide?
A. On the Texas policy, it sent the case back down to a federal appeals court, which previously had sided with the university against Fisher. The Supreme Court said the lower court hadn’t subjected the university’s justification for the preferences to enough scrutiny. A university’s educational judgment and experience can play a role in justifying racial preferences, the court said. But it also said lower courts shouldn’t just take a university’s “good faith” word that racial preferences are educationally necessary, or that such programs have been “narrowly tailored” to achieve their goals.
Rather, the justices ruled, courts must closely evaluate a college’s claims about why it needs to use racial preferences, and why race-neutral alternatives (such as simply giving a boost to low-income students, regardless of race) won’t achieve the diversity they need.
Q. What happens now?
A. The Fifth U.S. Circuit Court of Appeals will reconsider the case in light of the Supreme Court’s instructions to give the University of Texas more scrutiny; the university will now have to meet a higher standard to persuade the court it needs to use racial preferences. If the university can meet that standard, its policy could survive. But the case could return to the Supreme Court for another ruling, which could open the door to a broader decision on exactly what colleges can and cannot do when it comes to implementing racial preferences.
Q. Who won?
A. Both sides will claim something of a victory. Opponents of affirmative action will cheer the court’s sharp reminder that colleges must prove they have tried other alternatives before resorting to racial preferences. Many may now be more vulnerable to lawsuits, which could cause them to use racial preferences less aggressively (you can certainly count lawyers among the winners).
Overall, however, defenders of affirmative action are most relieved. The court upheld the essence of an idea it last articulated in a 2003 case involving the University of Michigan: Diversity is so important in education that it can justify racial preferences — at least sometimes. “It’s a strong affirmation of the importance of student body diversity in higher education, by a strong majority of the court,” said Marvin Krislov, who was the University of Michigan’s general counsel during the last affirmative action case and is now president of Oberlin College in Ohio.
“Relief is a good word,” said Lee Bollinger, a constitutional scholar and president of Columbia University who previously had warned that the use of affirmative action might be imperiled by this case. He emphasized that the court, in a series of decisions, now has upheld the value of diversity in education and made that value “completely solid constitutional doctrine.”
Q. What effect will the ruling have on college admissions policies, and which students go to which schools?
A. Probably very little, at least in the short run, according to numerous experts. First, remember that racial preferences are mostly an issue at perhaps several hundred colleges nationwide where slots are scarce; the majority of schools take anyone who meets baseline requirements and are able, even eager, to make room for more.
Many selective schools, however, have been practicing some form of affirmative action since about the early 1970s. Presumably, those schools used race in a manner they believed was consistent with what the Supreme Court allowed in 2003. On Monday, the court didn’t change those standards; it just instructed courts to review more closely what colleges do.
Q. What about in the long run?
A. The ruling could embolden rejected applicants like Fisher who believe they’ve been discriminated against, because universities know they must meet a higher bar to show such policies are justified. Such litigation likely would produce cases that get more deeply into the nuts and bolts of how admissions offices use race to make decisions. If those cases bubble up to the Supreme Court, the justices may then address more specifically what they think colleges can and cannot do.
But for now, the general right of colleges to make use of racial preferences to ensure a diverse student body is safe.
