Affirmative Action in Higher Ed Plays Out in Court

The issue of whether race should be a consideration in college admissions has been debated hotly for decades, and the Supreme Court will revisit the issue once more.

In Schuette v. Coalition to Defend Affirmative Action, No. 12-682, the Court will consider a 2006 initiative supported by 58% of Michigan voters that banned the use of racial preferences in government and public education, including college admissions. Objections and appeals mounted quickly:

The appeals court said the constitutional amendment is illegal because it prohibits affirmative action supporters from lobbying lawmakers, university trustees and other people who ordinarily control admissions policies. Instead, opponents of the ban would have to mount their own long, expensive campaign through the ballot box to protect affirmative action, the court said.

That burden "undermines the Equal Protection Clause's guarantee that all citizens ought to have equal access to the tools of political change," the court said.

The issue the court will evaluate is whether the legislation strips those who would challenge or modify the law of a realistic way to do so.

Those eager to pore over the merits of both sides will have to wait as the case will be heard in October. But gratification will come more swiftly for those waiting for a decision in Fisher v. Texas, which will rule on whether the University of Texas can use racial preferences as a factor to increase the diversity on its campuses. The decision is expected this week.

Fisher v. Texas has caught the interest of politicos and Constitutional scholars as well as the broader higher education community. The court as it stands now is different in makeup than in 2003 when it ruled 5-4 in Gruter v. Bollinger, a landmark ruling that allowed public universities to use race as a factor in admissions. Since then, Justice Sandra Day O'Connor has been replaced by Justice Samuel Alito, who is far more critical of such programs.

And, interestingly, the result may be a 4-4 tie, as Justice Elena Kagen excused herself because of her prior work on the case as solicitor general.

The stakes are high and the implications broad for Fisher v. Texas:

A decision forbidding the use of race at public universities would almost certainly mean that it would be barred at most private ones as well under Title VI of the Civil Rights Act of 1964, which forbids racial discrimination in programs that receive federal money.

Abigail Fisher, now 22, argues that she was the subject of discrimination by University of Texas – Austin's admissions policies that favored other, lesser-qualified students. In Texas, the top 10% of a school's graduating class is accepted to study at UT, while students in Texas and across the United States — as well as international applicants — compete for the remaining slots.

Matthew Tabor

Matthew Tabor

Matthew is a prolific, independent voice in the national education debate. He is a tireless advocate for high academic standards from pre-K through graduate school, fiscal sense and personal responsibility. He values parents’ and families’ rights and believes in accountability for teachers, administrators, politicians and all taxpayer-funded education entities. With a unique background that includes work in higher education, executive recruiting, professional sport and government, Matthew has consulted on new media and communication strategies for a broad range of clients. He writes the blog “Education for the Aughts” at , has contributed to National Journal’s ‘Expert’ blog for Education , and interacts with the education community on Twitter and Google+.
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