A pair of Supreme Court cases that consider the constitutionality of using race as a factor in college admissions could have broad impacts on how universities across the country admit students.
On Monday the Supreme Court agreed to examine the constitutionality of a Michigan law that prohibits colleges in the state from considering race in public college admissions, and it is currently deliberating a similar case involving the University of Texas.
A U.S. Circuit Court of Appeals said the Michigan law created burdens on racial minorities and that it violated the 14th Amendment guarantee of equal protection. But conservatives, including Michigan's Republican Attorney General Bill Schuette, have argued that using race as an admissions factor is wrong, and that decisions should be based on merit.
While the Supreme Court is not scheduled to hear the Michigan case before October, meaning a ruling wouldn't be likely until next year, the court is currently considering a similar affirmative action case. Fisher v. University of Texas also questions whether colleges and universities can give preferential treatment to racial minorities in the admissions process. A ruling on that case is expected sometime between now and June.
The lower courts that previously examined the case have ruled in favor of affirmative action.
As Reuters noted, "That the court agreed to hear the Michigan case before deciding the Texas case is unusual. The court's normal practice is to wait until it has issued a ruling before agreeing to hear another case on a related issue. This may mean that the court is struggling to decide the Texas case, or that the ruling could be coming as soon as this week."
The two cases could ultimately have broad impacts on the overall practice of affirmative action. If the Supreme Court agrees with Fisher in the Texas case, that ruling could end the process of providing some advantage to underrepresented minorities at colleges and universities across the nation.
Latinos currently benefit from affirmative action, particularly in Texas, but it's not necessarily race-based. The University of Texas, the largest college in the state, admits the top 10 percent of each class at every high school in the state, regardless of race. Some high schools are mostly black or mostly Hispanic, and consequently the program, as the New York Times put it, has "produced substantial racial and ethnic diversity." Twenty-six percent of freshmen enrolling at the school in fall 2011 were Hispanic, and 6 percent were black. The state overall is 38 percent Hispanic and 12 percent black.
Where affirmative action comes into play is in regard to students who fall outside the top 10 percent. Race is used as a factor in determining which of those students are accepted. Fisher, a white student, fell into this latter category and said she felt discriminated against on the basis of race.
Some states, such as New York, support affirmative action. Others, such as New Hampshire, have banned the practice. Opponents of affirmative action have argued that the practice creates a disadvantage for white students, while proponents say it helps make up for inequalities and past discrimination. Latinos and African-Americans are far less likely than whites to pursue higher education, and they are more likely to grow up in poverty.
Of course there is debate about whether affirmative action even works, and critics say a more effective policy would look beyond race.
A 2011 study by Stanford professor Sean Reardon found that the practice often results in racial diversity, but not income diversity. Income, Reardon noted, plays much more of a role in test scores than race: The higher the income of a student, regardless of race, the better they perform. Race-based affirmative action allows schools to admit wealthy minority students, who aren't necessarily the ones suffering from problems of inequality, and still claim to be diverse. The result is a surface-level diversity that doesn't address the real issues at hand and doesn't help the students who are most in need.
Texas says it's important to factor in race precisely because doing so allows them to pull in qualified students who are racially diverse.
"[The] University of Texas argues that it's essential to include those students, in part because they are more likely to have attended integrated high schools, are often wealthier and tend to have higher SAT scores, creating diversity within the school's minority populations," according to an article from Pew Charitable Trusts.
But Reardon's report notes that there has not actually been a decline in racial diversity where race-based affirmative action has been banned. That's because states have taken up alternatives, such as class-based considerations. Because poor students are disproportionately minorities, focusing on income inequality still promotes racial diversity.
"As this report outlines, universities in nine states have gone beyond racial preferences to create something that is hardly perfect but in profound ways far better: an affirmative action that is attentive to racial and ethnic diversity, but begins to address, at long last, deeper issues of class inequality in higher education," reads a Century Foundation study.
Regardless, race-based affirmative action programs are still prevalent, and any ruling by the court will still likely have a widespread impact on how schools tackle race and diversity in admissions, including at private universities. As Century Foundation noted, the court typically says that Fourteenth Amendment-related affirmative action decisions also apply to a part of the Civil Rights Act that bars discrimination in educational institutions receiving federal dollars. Nearly every private higher education institution in the United States gets federal funding, so the ruling will affect those schools as well.
The public has somewhat mixed feelings about affirmative action. According to a 2009 Pew Research Center survey, African-Americans and Latinos favor preferential treatment to improve the position of minorities, but whites do not. At the same time, however, the public, regardless of race, has expressed broad support for affirmative action designed to help blacks, women and other minorities get better jobs and education. The study looked at affirmative action in general, not specifically race-based affirmative action.
The Advancement Project, a civil-rights advocacy group, filed a "Friend of the Court" brief in favor of affirmative action. They say it's the high court's job to uphold the practice not only to make up for past wrongs, but precisely because it has become a contentious issue that has made classes and campus life difficult for minorities.
"UT's present commitment to a meaningful black and Latino presence on campus cannot be fully comprehended or assessed without attention to the ways that history lives on in the present at UT, affecting the social climate on campus and the dynamics inside the classroom," it reads.
According to Bertrall Ross, an assistant professor at the University of California-Berkeley's law school, the Texas case could lead to several outcomes. The Court could overturn the decision and suggest that race cannot be used in admissions decisions, it could say that race can be used as a factor but not carry too much weight, or the justices could say that the use of race in the case was fine and universities can continue to use race as a key factor.
Ross thinks the last possibility is unlikely, and that the first is unlikely given that the Court decided to hear the Michigan case, which leaves the more nuanced middle option.
Ross thinks universities might only be allowed to use race as one factor out of many in a "holistic" look at applicants. Things like personal statements and interviews would also need to be considered. Texas may say they did that, but the justices might indicate they don't think the university went far enough.
"My sense," he said, "is that they will say race can be used, but in the Texas context, it was used too much."
But Susan Low Bloch, a Georgetown University law professor, said she wouldn't read much into the Court taking the Michigan case. It only takes four justices to grant a case, and she thinks there are four opposed to affirmative action who are determined to keep hearing such cases in an attempt to limit the practice.
Bloch thinks a 4-4 tie is a definite possibility, since Justice Elena Kagan has recused herself. A tie would mean that the lower court ruling that sided with the Texas program would hold. But Bloch also thinks a ruling that finds the use of race in the Texas program and others like it unconstitutional, but upholds affirmative action in other instances, is likely.
Basically, since the practice of admitting the top 10 percent already gives the school numerical diversity, it's harder to justify the need to consider race for other applicants, she said. So the ruling might limit the use of race for schools with similar practices, but preserve affirmative action for schools that aren't already diverse.