Affirmed or Denied?
Supreme Court to test affirmative action
A case facing the Supreme Court later this fall is one that could have drastic effects on the way employers, college admissions, and other groups understand affirmative action. However, the finer points of the case may have vastly different implications for different institutions, including the Claremont Colleges, and it all depends on the way the Supreme Court decides to rule on the modern conception of affirmative action.
At its inception, President Lyndon B. Johnson described his vision of affirmative action as not simply a force of freedom, but of actively bringing racially disadvantaged citizens to be equally free from economic bonds as well. This original purpose is important to keep in mind moving forward, and will shape the debate in the upcoming case Fisher v. University of Texas.
In 2003, the Supreme Court narrowly upheld a University of Michigan law school policy in Grutter v. Bollinger, affirming the University’s right to factor in race slightly during the admissions process to increase diversity. The 5-4 decision was based on the fact that Michigan was not assigning “points” or any other sort of quantitative measurement to race in the admissions process per se, but simply looking at is as another factor in the admissions process like leadership or community service.
The Supreme Court will have to revisit that decision in Fisher, a case in which Abigail Fisher, a white female, is suing the University of Texas for racially discriminating against her application. The University of Texas has a “Top 10%” policy, in which any student in the top 10 percent of his or her high school in Texas is granted automatic admission into the University. This policy has filled most of the spots in the freshman class since its inception in 1998. However, after Grutter, the University began to incorporate race as a factor for filling out the rest of its freshman class. Fisher’s case is twofold – first, she argues that the “Top 10%” policy has made the University of Texas one of the most diverse institutions in the nation, and that adding benefits for diversity is overkill for the rest of the class. She also contends that the school’s rationale that diversity is needed to “adequately reflect the diversity breakdown of the state” is exactly the type of racial balancing that the Court in Grutter indicated would be unconstitutional.
Here at the Claremont Colleges, we have the luxury of approaching diversity in a different way. Whereas the University of Texas has to factor in innumerable variables due to its public nature, the 5Cs are only partially funded through federal funds, and therefore can interpret diversity in a differently. Adam Miller, Associate Dean of Admissions for Claremont McKenna, explained the process as more of an ex post examination. Due to the applicant pool difference – about 31,400 versus about 4,600, respectively — CMC can look at the breakdown of each applicant pool, see who is applying, who isn’t, and why. “Our diversity process is a holistic review and is more about outreach,” Miller explained. “CMC, while U.S. oriented, is a global institution. Where we recruit has a direct correlation to who applies.”
Matthew Bibbens, CMC’s General Counsel, explained the official policy more specifically: “CMC follows an individualized holistic process. There are both quantitative aspects (test scores, academic achievements, etc) and qualitative aspects that play a role.” Bibbens elaborated that “race is an aspect of diversity, but not the whole picture. There are no separate admission tracks for any student, regardless of background.”
In this way, CMC is not factoring in any sort of set quota or single ethnic pool to fill seats. Trying to shift the applicant pool of an institution through recruitment can hardly be construed as “affirmative action” in the traditional sense. The University of Texas’ announcement that the University wants to reflect the socioeconomic and racial breakdown of the state, on the other hand, could easily be taken as an implementation overreach of affirmative action. While CMC and the other Claremont Colleges will have to pay attention to the decision in Fisher, it is very plausible that the ruling may change affirmative action in the way that the University of Texas was using it, but not in the way CMC has traditionally taken race into account.
So, does Fisher have a case? Possibly — she is making several claims that the Court could choose to focus on or ignore. On top of her basic claims, Fisher is asking the Supreme Court to reconsider Grutter, which, if they do so, could completely overturn affirmative action as we know it. Justices Kennedy, Scalia, and Thomas all opposed affirmative action in Grutter. Chief Justice Roberts was not yet a justice when the Court decided Grutter, but is seen as an opponent of affirmative action, as well as Justice Alito, which makes for a majority of the Court.
One of the most plausible directions the Court can take is to reiterate the messages in Grutter. While the line between quantitative and qualitative measurements for admissions is hazy, the University publicly stating that it accepts minorities to better represent the state population sounds eerily close to filling a quota, which the Court explicitly forbid in Grutter.
George Thomas, CMC Associate Professor of Government specializing in American Constitutionalism, proposes another solution that calls the University’s bluff in its stated goal of fostering diversity. Thomas’ argument would make diversity equally as important as any other metric of admission, if not more so. However, Thomas explained, “lowering academic standards to increase any diverse aspect of an institution could compromise that institution’s retention of elite status as an institution.” This is exactly the fine line academic institutions try to walk, and exactly what has gotten them into trouble.
Finally, the Court could take up Fisher’s final claim to try and overturn Grutter altogether, significantly weakening (and possibly effectively nullifying) affirmative action. This result is conceivable with the current makeup of the court. Without Grutter, there are other cases to fall back on that have addressed affirmative action in similar ways, but they all essentially stem from Grutter, so overturning that case will effectively overturn the similar message in subsequent cases.
Overall, Fisher reopens the affirmative action conversation at the federal level, forcing the Supreme Court to examine the law in a number of ways. As Professor Thomas explained, “affirmative action was originally intended to help out economically disadvantaged minorities, and the Court may want to examine how effective it has been at helping those burdened minorities versus those who are more privileged.” Questions of race and economic status are not as cut and dry as they were on the coattails of desegregation. A harsh criticism lobbied against affirmative action is that it helps minorities who are not economically disadvantaged relative to the societal norm. If the original intention of the legislation was primarily an economic one, then it may be time to rethink affirmative action to continue progressing on that front. It is no question that affirmative action has helped make great strides in racial equality, but to continue to do so, it likely needs reform.
It is these questions, legal and otherwise, that the Supreme Court must consider this fall when hearing Fisher v. University of Texas. The Court’s opinion could reinforce the historic rulings regarding quantitative versus qualitative measures, or it could change the way affirmative action is viewed and implemented completely. It all depends on the the opinions of nine individuals.