The Supreme Court agreed on Monday to take a second look at a challenge to the use of race in admissions decisions by the University of Texas at Austin, reviving a potent challenge to affirmative action in higher education.
When the court last considered the case in 2013, supporters of affirmative action were nervous. But the court kicked the can down the road in what appeared to be a compromise decision.
In returning to the case, the court signaled that it might be prepared to issue a major decision on the role race may play in government decision making.
In 2013, Justice Anthony M. Kennedy, writing for the majority, said the appeals court had been insufficiently skeptical of the program, which has unusual features. The appeals court then endorsed the program for a second time.
Most applicants from Texas are admitted under a part of the program that guarantees admission to the top students in every high school in the state. (This is often called the Top 10 program, though the percentage cutoff can vary by year.)
The Top 10 program has produced significant racial and ethnic diversity. In recent years, about 25 percent of freshmen who enrolled under the program were Hispanic, and 6 percent were black.
The remaining Texas students and those from elsewhere are considered under standards that take account of academic achievement and other factors, including race and ethnicity. Many colleges and universities admit all of their students on such “holistic” grounds.
In 2003, in Grutter v. Bollinger, the Supreme Court endorsed such holistic admissions programs, saying it was permissible to consider race as one factor of many to achieve educational diversity. Writing for the majority in the Grutter case, Justice Sandra Day O’Connor said she expected that “25 years from now,” the “use of racial preferences will no longer be necessary.”
The question in the Texas case was whether its flagship state university was entitled to supplement its race-neutral Top 10 program with a race-conscious holistic one.
The Supreme Court’s 2013 decision in Fisher v. University of Texas reaffirmed that educational diversity is an interest sufficient to overcome the general ban on racial classifications by the government. But it added that public institutions must have good reasons for the particular methods they use to achieve that goal.
Colleges and universities, Justice Kennedy wrote, must demonstrate that “available, workable race-neutral alternatives do not suffice” before using race in admissions decisions.
Courts reviewing government programs that make distinctions based on race subject them to a form of judicial review known as “strict scrutiny,” which requires the government to identify a compelling goal and a close fit between means and ends. Justice Kennedy’s opinion focused on and tightened the second part of the test.
“Strict scrutiny,” Justice Kennedy wrote, “does not permit a court to accept a school’s assertion that its admissions process uses race in a permissible way without a court giving close analysis to the evidence of how the process works in practice.”
Last year, in its second encounter with the case, a divided three-judge panel of the United States Court of Appeals for the Fifth Circuit, in New Orleans, ruled that the Texas admissions plan satisfied strict scrutiny.
“We are persuaded that to deny U.T. Austin its limited use of race in its search for holistic diversity would hobble the richness of the educational experience,” Judge Patrick E. Higginbotham wrote for the majority.
The Top 10 program is inadequate, he said, because it is a blunt instrument and a product of the fact that many Texas high schools are largely segregated.
“While the Top 10 percent plan boosts minority enrollment by skimming from the tops of Texas high schools,” Judge Higginbotham wrote, “it does so against this backdrop of increasing resegregation in Texas public schools, where over half of Hispanic students and 40 percent of black students attend a school with 90 percent-100 percent minority enrollment.”
In dissent, Judge Emilio M. Garza said the university’s justifications for using race were “subjective, circular or tautological.”
The case, Fisher v. University of Texas, No. 14-981, arose from a lawsuit filed by a white woman, Abigail Fisher, who said the university had denied her admission based on her race. She has since graduated from Louisiana State University.
As in the earlier appeal, Justice Elena Kagan has recused herself from the case because she worked on it as United States solicitor general.
http://www.nytimes.com/2015/06/30/u...column-region®ion=top-news&WT.nav=top-news
When the court last considered the case in 2013, supporters of affirmative action were nervous. But the court kicked the can down the road in what appeared to be a compromise decision.
In returning to the case, the court signaled that it might be prepared to issue a major decision on the role race may play in government decision making.
In 2013, Justice Anthony M. Kennedy, writing for the majority, said the appeals court had been insufficiently skeptical of the program, which has unusual features. The appeals court then endorsed the program for a second time.
Most applicants from Texas are admitted under a part of the program that guarantees admission to the top students in every high school in the state. (This is often called the Top 10 program, though the percentage cutoff can vary by year.)
The Top 10 program has produced significant racial and ethnic diversity. In recent years, about 25 percent of freshmen who enrolled under the program were Hispanic, and 6 percent were black.
The remaining Texas students and those from elsewhere are considered under standards that take account of academic achievement and other factors, including race and ethnicity. Many colleges and universities admit all of their students on such “holistic” grounds.
In 2003, in Grutter v. Bollinger, the Supreme Court endorsed such holistic admissions programs, saying it was permissible to consider race as one factor of many to achieve educational diversity. Writing for the majority in the Grutter case, Justice Sandra Day O’Connor said she expected that “25 years from now,” the “use of racial preferences will no longer be necessary.”
The question in the Texas case was whether its flagship state university was entitled to supplement its race-neutral Top 10 program with a race-conscious holistic one.
The Supreme Court’s 2013 decision in Fisher v. University of Texas reaffirmed that educational diversity is an interest sufficient to overcome the general ban on racial classifications by the government. But it added that public institutions must have good reasons for the particular methods they use to achieve that goal.
Colleges and universities, Justice Kennedy wrote, must demonstrate that “available, workable race-neutral alternatives do not suffice” before using race in admissions decisions.
Courts reviewing government programs that make distinctions based on race subject them to a form of judicial review known as “strict scrutiny,” which requires the government to identify a compelling goal and a close fit between means and ends. Justice Kennedy’s opinion focused on and tightened the second part of the test.
“Strict scrutiny,” Justice Kennedy wrote, “does not permit a court to accept a school’s assertion that its admissions process uses race in a permissible way without a court giving close analysis to the evidence of how the process works in practice.”
Last year, in its second encounter with the case, a divided three-judge panel of the United States Court of Appeals for the Fifth Circuit, in New Orleans, ruled that the Texas admissions plan satisfied strict scrutiny.
“We are persuaded that to deny U.T. Austin its limited use of race in its search for holistic diversity would hobble the richness of the educational experience,” Judge Patrick E. Higginbotham wrote for the majority.
The Top 10 program is inadequate, he said, because it is a blunt instrument and a product of the fact that many Texas high schools are largely segregated.
“While the Top 10 percent plan boosts minority enrollment by skimming from the tops of Texas high schools,” Judge Higginbotham wrote, “it does so against this backdrop of increasing resegregation in Texas public schools, where over half of Hispanic students and 40 percent of black students attend a school with 90 percent-100 percent minority enrollment.”
In dissent, Judge Emilio M. Garza said the university’s justifications for using race were “subjective, circular or tautological.”
The case, Fisher v. University of Texas, No. 14-981, arose from a lawsuit filed by a white woman, Abigail Fisher, who said the university had denied her admission based on her race. She has since graduated from Louisiana State University.
As in the earlier appeal, Justice Elena Kagan has recused herself from the case because she worked on it as United States solicitor general.
http://www.nytimes.com/2015/06/30/u...column-region®ion=top-news&WT.nav=top-news
