University defends affirmative action in amicus brief to SCOTUS

Monday, November 2, 2015 - 8:03pm

No stranger to court cases regarding the constitutionality of affirmative action, the University submitted an amicus brief to the U.S. Supreme Court on Monday highlighting its opinion that such programs are invaluable to colleges that strive to increase diversity on their campuses.

An amicus brief is a document in which a third party sends its opinions and additional information on a particular case for the court’s consideration. The University is the subject of two historic Supreme Court cases surrounding affirmative action, and the University of Texas is the defendant in the current case before the court, Fisher v. University of Texas.

In its brief, the University argues that the pursuit of diversity is a legitimate goal for universities, writing further that it supports the University of Texas in its endeavor to do so by operating race-based admissions programs.

“That view accords with the overwhelming consensus of American universities, which have concluded that racial diversity benefits the exchange and development of ideas by increasing students’ variety of perspectives; promotes cross-racial understanding and dispels racial stereotypes; and helps prepare students to be leaders in a global marketplace and increasingly multicultural society,” the brief said.

Law Prof. Richard Primus said in an interview Monday it is not uncommon for institutions with expertise on a certain issue to submit briefs to the Supreme Court. He said in this particular case, the University can draw on its own experience to help the court make a sensible decision.

In 2006, Michigan voters approved an amendment to the state’s constitution, called Proposal 2, which banned colleges and universities from granting preferential treatment to any student based on race, ethnicity, sex or national origin. Accordingly, the University abandoned race-based affirmative action, and attempts to achieve racial diversity on its campus through a race-neutral admissions process.

Regardless, in the brief, the University said it continues to believe the limited consideration of race is necessary to attain institutional diversity.

“To identify promising candidates effectively, admissions officers must be able to consider the fullness of each applicant’s background and experience, including socioeconomic profile, challenges overcome, cultural background — and also the applicant’s race,” the brief said.

In the case of Fisher v. University of Texas at Austin, a student named Abigail Fisher, who is white, is arguing that she would have been admitted to the UT Austin if not for her race. Currently, the University of Texas employs two parallel admissions systems: one is an automatic admissions program for in-state students who graduate in the top 10 percent of their classes — known as the 10 percent plan — and the other is a holistic process used to evaluate out-of-state students as well as Texans who did not graduate at the top of their classes. The court originally heard the Fisher case in 2013, but sent it back to a lower court at the time for further review. The court will hear the case again in oral arguments scheduled for December. 

In the Fisher case, the court will decide the future of the consideration of race in admissions procedures — if it rules in favor of Fisher, all universities, including Texas, would be required to remove any consideration of race from their admissions programs.

As the result of previous affirmative action cases, universities may not use quota or point systems to achieve racial diversity, but may qualitatively consider race as one of many factors when making admissions decisions. In 2003, the court upheld the University of Michigan’s holistic affirmative action admissions policies practicied in the Law School, but in another case that same year, struck down the University’s undergraduate policy which employed a point system.

The outcome of the Fisher case could be determined by the potential swing vote of Justice Anthony Kennedy. He has tended to side with the more conservative justices against affirmative action in the past, if that is any indication of how the case could unfold.

Along these lines, Primus said the University’s brief is important as an example of an institution that currently operates how the University of Texas would be required to if the court ruled in favor of Fisher.

“One of the big questions for Justice Kennedy, and therefore for the Supreme Court — because Justice Kennedy is the median justice on this issue — is the extent to which universities can be racially diverse without race-based affirmative action,” he said. “We are a good example of a university that is trying hard to be racially diverse without (race-based) affirmative action.”

In support of the UT position, the University held in the brief that since race-conscious admission programs were banned in Michigan, the University has had trouble meeting its goals for diversity on its campuses.

“Despite persistent and varied efforts to increase student-body racial and ethnic diversity by race-neutral means; despite committed efforts by University faculty, staff, students, and alumni to conduct race-neutral recruiting and admissions programs; and despite admissions consideration and extensive financial aid for socioeconomically disadvantaged students, admission and enrollment of underrepresented minority students have fallen precipitously in many of U-M’s schools and colleges since Proposal 2 was enacted,” the brief said.

To this end, the brief cited two Michigan Daily articles concerning minority enrollment at the University.

While the ruling in Fisher will not legally affect the University (as it is already banned from employing race considerations in admissions decisions based on state law), it could have broad policy implications for other universities and colleges nationwide.

Primus said other institutions currently employ the kinds of race-based admissions processes the University previously employed.

“Nationwide, the Supreme Court has left the door open for certain kinds of consideration of race in admissions, so long as the system of admissions overall is careful to treat each applicant as an individual instead of as a manifestation of a racial category,” he said. “One of the questions is whether other states can continue to use the method that we used to use successfully here.”