This fall, the United States Supreme Court will reconsider the issue of affirmative action in higher education for the first time since its 2003 decision in Grutter v. Bollinger. In Grutter the Court held that, “The Equal Protection Clause does not prohibit the [University of Michigan] Law School’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.” The Court will consider the appeal of Abigail Fisher, a white student, who alleges she was denied admission to the University of Texas because of the color of her skin. At issue in the Fisher case is whether the Court’s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Grutter, permit the University of Texas at Austin’s use of race in undergraduate admissions decisions.
The Supreme Court’s decision stands to have great impact nationally. Numerous amicus briefs have been filed in support of both litigants. Of note, the University of California (UC) president and chancellors, the state of California, the California Institute of Technology and a group of student organization at UC campuses are among at least 69 organizations that have filed amicus briefs in support of the University of Texas at Austin. California is one of a few states that have already prohibited affirmative action in college admissions following the passage of Proposition 209 in 1996. In its amicus brief, UC attorneys argued that the university system’s experience after Prop. 209 “sheds important light on the practical, real-world obstacles faced by universities seeking to obtain the educational benefits that flow from a diverse student body.” Similarly, the brief filed on behalf of the state of California by Attorney General Kamala Harris observed that if California, a large and diverse state, could not achieve an acceptable level of diversity in its public universities in the absence of race-conscious admissions policies, other states with more homogeneous populations would struggle to an even greater extent.
Despite several initiatives enacted after the passage of the proposition, UC has not been able to reverse the decline in minority admission and enrollment since 1998, when the law went into effect. Between 1995 and 2009, African Americans consistently represented between 7 and 8 percent of new high school graduates in California. In 1995, African Americans made up 7.3 percent of admitted freshmen at UC Berkeley, but by 1998, that figure had dropped to 3.2 percent. In 2010 and 2011, it was 3.9 percent. UCLA saw similar results.
Is diversity a sufficiently compelling reason to use race in admissions decisions? Is there a compelling interest in obtaining educational benefits from a diverse student body? Could a reversal of the Court’s decision in Grutter result in less diverse student bodies at public colleges and universities as has been experienced in California?
Alison Y. Ashe-Card
Womble Carlyle Sandridge & Rice, LLC