By Peter Shahin, Daily Staff Reporter
Published October 9, 2012
The U.S. Supreme Court will hear oral arguments on Wednesday in a case that has the potential to redefine the way race is interpreted in higher education admissions.
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Fisher v. University of Texas — which began in 2007 when the University of Texas denied admission of white student Abigail Fisher — has given the court the opportunity to review, reaffirm or reverse its rulings in the two 2003 cases involving the University of Michigan, Gratz v. Bollinger and Grutter v. Bollinger.
The two cases have served as the foundation in defining the uneasy status quo surrounding the use of race in college admissions. In 2003, the court decided the University's practice of awarding points toward admission based solely on race failed to fairly weigh the diversity of each candidate. Instead, Grutter upheld a holistic approach where race could be considered a valid factor in the context of additional qualifications.
In 2007, Fisher posed a new challenge to affirmative action efforts in Texas. Fisher attended a competitive, predominantly white high school, but was not part of the top 10 percent of her class. At the University of Texas, the top 10 percent of every high school class in the state gains automatic admission, and this policy fills up 85 percent of openings in the freshman class. Fisher was then forced to compete for one of the remaining spots, for which race is taken into consideration.
The justices will consider most directly whether this system is legal in light of the Gratz and Grutter decisions. However, it is widely expected that the court will use the opportunity to review the overall role of affirmative action and possibly revise or reject the 2003 rulings.
Due to Proposal 2, also known as the Michigan Civil Rights Initiative, consideration of race in higher education admissions has been outlawed in the state of Michigan since 2006. Therefore, the Supreme Court's decision will not have any effect on the University’s practices directly, but may result in sweeping changes for higher education across the nation.
On the eve of the oral arguments, University officials weighed in on the future of affirmative action and its role in higher education.
University President Mary Sue Coleman, who led the University through the Gratz v. Bollinger and Grutter v. Bollinger cases and later championed the campaign against Proposal 2, said the University submitted an amicus curiae brief to the court reaffirming its commitment to diversity in the classroom.
Coleman emphasized that arbitrary admissions diversity targets failed to adequately recognize the fluctuating demographics of college-aged youth.
"The demographics are constantly changing, so it's interesting to me the argument that ‘Well, we somehow reached a goal we had ten years ago,’" Coleman said. "But the demographics aren't the same as we had 10 years ago."
Coleman added that she couldn't foresee a day when the nation would be able to completely do away with affirmative action policies, even if those protocols were no longer based on race.
Residential College Prof. Carl Cohen was one of the main opponents of the use of affirmative action during the University's struggle with the issue.
In 1996, Cohen released findings from a Freedom of Information Act request he submitted about the University's use of affirmative action in admissions. Cohen's information revealed that minority students received 20 points toward the required 100 points needed for admission, while a perfect ACT score was worth 12 points. This information formed much of the basis for Gratz's 1998 lawsuit against the University.
After the Grutter and Gratz decisions in 2003, Cohen and then University of California Regent Wardell Connerly led the campaign in favor of Proposal 2. Connerly had previously led similar campaigns in other states.
Today, Cohen says the change in the composition of the court since 2003 works in favor of a stricter reinterpretation of the issues raised in Grutter. Justice Sandra Day O'Connor — a liberal jurist who wrote the majority opinion in the 5-4 decision — was succeeded by the more conservative Justice Samuel Alito in 2006. Alito has previously expressed strong opinions against the use of affirmative action in higher education.
"It's likely that Abigail Fisher will prevail in some fashion, but what fashion?" Cohen said. "Is she going to prevail because they say, 'no, you can't do that under Grutter?' Is she going to prevail because the justices decide Grutter was bad medicine and get rid of it?"
Cohen said the phrase "affirmative action" originated in the 1960s under Presidents John F. Kennedy and Lyndon Johnson in an effort to prevent government contractors from using preferential hiring practices. He added that the idea of using affirmative action as "preferential" treatment dates from the 1970s.
"There will come a day when we look back on this race preference with a little bit of embarrassment," Cohen said. "We give preference based by race largely out of white guilt. The minorities have suffered so much oppression over the generations that we feel we should make something up to them. I don't think that justification for preference will long stand."
Cohen said his beliefs are grounded in the principles of equal protection outlined by the 14th Amendment and the Civil Rights Act of 1964.
"It's morally wrong to give people more or less because of the color of their skin," Cohen said. "Good motives don't make wrong acts right. And giving presence by skin color by my view is morally wrong, and a violation of the constitution, and a violation of the law."
Philosophy Prof. Elizabeth Anderson, a supporter of affirmative action, said she also bases her opinions on the spirit of the 14th Amendment and the ruling in Brown v. Board of Education.
However, she said she finds some faults with the University of Texas’s 10 percent rule. The goal of the policy, and one of the chief points of contention in Fisher v. University of Texas, is to create a more diverse campus.
"The only way it achieves diversity is by depending on de facto massive racial segregation at the K-12 level," Anderson said. "If you think the constitutional imperative of Brown v. Board of Education is to give a license to the states to practice racial integration ... You shouldn't have to rely on de facto racial segregation at the K-12 level to justify racial integration at the higher education level."
Anderson said she prefers the holistic view of race as a factor in admissions allowed by the U.S. Supreme Court under Grutter to the Texas 10 percent rule. However, she said the outlook for affirmative action in the case is "very bad," especially given that Justice Elena Kagan, a liberal-leaning justice, has chosen to recuse herself. Kagan previously worked on the case when she was the United States solicitor general the Department of Justice, creating a conflict of interest.
Anderson cited research findings that claim elite higher education institutions that use affirmative action doubled representation of African-American students on campus. Half of African-American students were found to have similar demographics to their white peers, but the other half came from poorer, less stable family environments.
"African-American students have a much broader experience of the condition of Americans," Anderson said. "Even middle class African Americans have less access to sheltered neighborhoods than equal income whites. That's the direct product of massive housing discrimination."
She added that the value these diverse students bring to higher education institutions is not about finding about the "other side of the tracks,” but about showing the "future elites of America" what life is like outside wealthy neighborhoods.
Rackham student Daniel Hirschman, who is currently working on a paper about the University’s affirmative action practices between the 1960s and 2004, said the court’s findings seem counterintuitive.
The court found in 2003 that the more "objective" system involving formal point awarding was considered illegal in Gratz, while the more subjective evaluation of diversity from an application was allowed under Grutter.
"Affirmative action is only an issue at a small number of selective universities," Hirschman said. "It's a function of a fact that you're trying to admit a smaller number of students than are applying."
Hirschman also questioned the meritocratic idea that only the most academically qualified students should be allowed to attend these elite schools. He cited the long-standing disparity in SAT scores between races as an indication that the test captured a racial bias, and therefore race was needed to adequately consider an applicant.
"I think there's an assumption in a lot of the public discourse, the (U.S. Supreme Court) debates as an example, that students that deserve to get in are the ones who are the most academically talented," Hirschman said. "That's not how universities have ever worked ... How do we define 'merit' in the first place?"