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Court must affirm role of race in higher education

Published: September 28, 2012
Section: Opinions


The U.S. Supreme Court begins a new term on Monday morning, one that could mean huge changes in American life, be they concerning gay rights, continued federal enforcement of voting rights or the future of critical counter-terrorism efforts. The issue, however, that looms largest on our small university in Waltham is up for oral argument in 12 precious days: An appellant will ask the Court if colleges can use racial preferences in education admissions. The broader consequence is that policies similar to those at Brandeis are in danger all over the nation.

Abigail Fisher, who is caucasian, was denied admission to the University of Texas at Austin a few years ago, a decision she contends was due to her race. The last time the Court considered the issue of race in admissions, as part of the Constitution’s prohibition of race discrimination, a 2003 decision of 5-4 upheld the ability of the University of Michigan Law School to use a “holistic” approach to race, considering it in addition to several other factors. But the Court did allow it to consider race. “Encouraging diversity” was given the elite title of a compelling interest, making it acceptable constitutionally in older cases. The holistic approach met the criteria in Regents of the University of California v. Bakke, in 1978 and 2003’s Grutter v. Bollinger.

It has been less than 10 years since Grutter and Texas’ admissions program is so similar to Michigan’s that it is couched in the same language as that of the law school. So why is race in admissions in such peril? Sandra Day O’Connor wrote Grutter, but she is no longer on the Court.

Since the deeply conservative Samuel Alito was chosen by former President George W. Bush to replace her, the justice who occupies her swing-vote moderate seat instead is Anthony Kennedy—who dissented in 2003, calling the affirmative action process illegal racial balancing.

While this case, Fisher v. University of Texas at Austin, does not ask the Supreme Court to overrule directly the findings of the precedents, a ruling discarding Texas’ measures would leave public schools across the country wondering what they could do, without running afoul of this new constitutional prohibition.

The nation has benefited greatly from brave decisions like those made in Bakke more than 30 years ago. Race-relations are far from ideal, and the rates of minority graduation levels are still underwhelming at best. But affirmative action programs have made it possible for college administrators to consider other hardships, like discrimination, family issues or cultural oppression, as factors that entitle some children to a second look.

If the Far-right Five on the Court declare these looks, because of a student’s historically underrepresented race, unconstitutional on paper, they will be undermining a century and a half of progress. The consequences are noted in the briefs submitted on behalf of the university: Fortune 500 companies, hardly liberal commonwealths, have urged the Court to let the nation pride diversity as a value in our success. They warn that the nation’s economic productivity could be harmed if we could not find and educate the best and brightest, which is what will happen if we do not take racial factors into account. The Obama administration commendably supported Texas’ case. The briefs on behalf of Fisher are just the usual jealous and spiteful conservative organizations that have opposed affirmative action for years.

The decision of the Court will be handed down by the end of next spring: public colleges, as arms of the state, will be immediately affected. Universities that are private, like Brandeis, would still be able to use affirmative action, but Brandeis receives public funding in the form of regular grants and specific programs, some of which could be inoperable if the federal purse cannot be used in the way it has for half a century.

This is the part of a column where a good editorialist issues a call to action, detailing the necessary steps to bring the desired goal into effect. Fellow supporters of racial diversity in admissions: Unfortunately, in this instance, the Supreme Court is largely immune to political action. If race-based admissions are struck down, there is little we can do, except hope that we are in a wide enough majority to spur further action from all three of our governmental branches.

For those who would like to be supportive of Abigail Fisher’s misguided plight, I instead call for you to consider the testimony of the University of Texas. The specific program they have in place is sound. Minority graduation rates there have doubled since the program’s inception, and recently UT-Austin ranked sixth in the nation in terms of minority participation and diversity. Affirmative action does not deny deserving-citizens’ rights that then go to an undeserving lucky few. An SAT score and GPA do not tell an admissions counselor the entire story. A composite score of 2050 from a student in a home trapped in poverty with family laboring amid racial prejudice? Yes, sometimes this person has more to offer a university than another 2100 from an upper-middle-class white student.

The nation’s business leaders, civil service and virtually all of the education community are supporting Texas, as stand-in for the nation trying to better guarantee the promises of our Constitution to everyone, regardless of race. Much needs to be done, especially in fulfilling that promise to our nation’s poorest, including poor whites. But listening to Fisher and her backers would be moving backward.