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Not Appear­ing in This Case

One of the most impor­tant cases of this year’s docket is up for argu­ment before the Supreme Court today. At issue is whether the Equal Pro­tec­tion clause of the Four­teenth Amend­ment per­mits con­sid­er­a­tion of an applicant’s race a one of many ele­ments in accept­ing or reject­ing col­lege admis­sion appli­ca­tions. This case could decide the fate of affir­ma­tive action laws, not only in col­lege admis­sions, but in the fields of hir­ing and fed­eral con­tract­ing as well.

Sec­tion 1 of the Four­teenth Amend­ment is below, with the Due Process and Equal Pro­tec­tion clauses highlighted:

All per­sons born or nat­u­ral­ized in the United States, and sub­ject to the juris­dic­tion thereof, are cit­i­zens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the priv­i­leges or immu­ni­ties of cit­i­zens of the United States; nor shall any State deprive any per­son of life, lib­erty, or prop­erty, with­out due process of law; nor deny to any per­son within its juris­dic­tion the equal pro­tec­tion of the laws.

The Equal Pro­tec­tion clause thus requires each state to pro­vide equal pro­tec­tion under the law to every­one within that state. The Supreme Court used this require­ment in Brown v. Board of Edu­ca­tion (1954) to order the deseg­re­ga­tion of Amer­i­can schools. Fisher v. Uni­ver­sity of Texas will deter­mine if this require­ment still stands.

In 1966, the Texas leg­is­la­ture adopted the race-​​neutral “Top Ten Per­cent” law as the under­grad­u­ate admis­sions pol­icy for the Uni­ver­sity of Texas. This law guar­an­tees that all Texas high school stu­dents who grad­u­ate in the top ten per­cent of their class will be accepted into the state Uni­ver­sity. This did have a pos­i­tive affect on minor­ity admis­sions, but after the 2003 Supreme Court deci­sion in Grut­ter v. Bollinger (see below), the Uni­ver­sity of Texas added to the legally-​​defined stan­dard to allow race as one of many con­sid­er­a­tions for stu­dents not falling in the top ten percent.

These addi­tional cri­te­ria for the remain­der of UT stu­dents is called a “holis­tic whole-​​file review” of appli­ca­tions. The schools may con­sider essays, lead­er­ship qual­i­ties, extracur­ric­u­lar activ­i­ties, awards, work expe­ri­ence, com­mu­nity ser­vice, fam­ily respon­si­bil­i­ties, socio-​​economic sta­tus, and lan­guages spo­ken in the home. As of 2005, the Uni­ver­sity may also con­sider race.

In 2008, two white stu­dents (Abi­gail Noël Fisher and Rachel Mul­ter Michalewicz) sued the Uni­ver­sity of Texas when denied admis­sion under these rules, argu­ing that the race-​​conscious admis­sions pol­icy vio­lated their rights to equal pro­tec­tion under the Four­teenth Amend­ment. We should not miss the irony that white stu­dents claimed their rights were being vio­lated using pre­cisely the argu­ments that had cre­ated the admis­sions pol­icy designed to pro­tect the rights of minor­ity students.

The Court last con­sid­ered the issue of race in col­lege admis­sions in the 2003 case Grut­ter v. Bollinger. Jus­tice San­dra Day O’Connor, a Rea­gan appointee, wrote that 5–4 deci­sion uphold­ing the affir­ma­tive action pol­icy of the Uni­ver­sity of Michi­gan Law School. The rul­ing held that a uni­ver­sity may con­sider race as one of many ele­ments in its admis­sions process, in order to help ensure diver­sity or to avoid any pos­si­bil­ity of dis­crim­i­na­tion against minori­ties. Jus­tice O’Connor wrote that it may not be nec­es­sary to con­sider race at some point in the future, but that it still made sense to do so in 2003.

In 2009, United States Dis­trict Court judge Sam Sparks upheld the University’s pol­icy, writ­ing that it sat­is­fied the stan­dards and require­ments of Grut­ter v Bollinger. In 2011, the Fifth Cir­cuit Court of Appeals panel voted 9–7 to uphold the Dis­trict Court deci­sion. Fisher appealed again to the Supreme Court, which granted cer­tio­rari in Feb­ru­ary of 2012. Oral argu­ments are today.

Since the Grut­ter v Bollinger deci­sion, Jus­tice O’Connor has been replaced by the more con­ser­v­a­tive Chief Jus­tice John Roberts, an George W. Bush appointee, thus mak­ing it more likely to go the other way this time around. The swing vote on the Court these days is usu­ally with Jus­tice Anthony Kennedy, another Rea­gan appointee, who voted against the major­ity deci­sion in Grut­ter v Bollinger. A fur­ther com­pli­ca­tion in Fisher is that Jus­tice Elena Kagen has recused her­self from this case. She was Solic­i­tor Gen­eral when the United States filed an ami­cus brief while the case was being argued on appeal before the Fifth Circuit.

This may thus come down to a 5–3 deci­sion, with the Court’s con­ser­v­a­tive major­ity rul­ing, and it could have an enor­mous impact on racially con­scious poli­cies, not only in col­lege admis­sions, but in other areas such as employ­ment rights, hir­ing and pro­mo­tion deci­sions, rules award­ing fed­eral or state pur­chas­ing and con­struc­tion con­tracts, per­haps in other areas as well.

Jus­tice Kennedy could sur­prise observers; last term, Chief Jus­tice Roberts showed a par­tic­u­larly strong inde­pen­dence in his deci­sion on the fate of Afford­able Care Act. In case of a 4–4 tie, the Cir­cuit Court’s deci­sion will stand, and the Uni­ver­sity of Texas will retain its cur­rent admis­sions pol­icy. Stephen Menen­dian has an excel­lent arti­cle dis­cussing likely clues to look for in oral argu­ments in an attempt to divine how the Jus­tices are leaning.

What are your thoughts? Is it per­mis­si­ble — even, per­haps, required — to con­sider race as one of many fac­tors in col­lege admis­sions? Was affir­ma­tive action ever required as a means of cor­rect­ing racial dis­crim­i­na­tion? If so, is it still required today? What about areas of dis­crim­i­na­tion in sex­ual ori­en­ta­tion, gen­der, or reli­gious faith? Does the Equal Pro­tec­tion clause of the Four­teenth Amend­ment, enacted after the Amer­i­can Civil War, still have mean­ing in 21st cen­tury America?

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