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Affirmative Action Argument by University of Texas Draws Praise, Invites Criticism

WASHINGTON – In the latest brief filed in the affirmative action case pending before the U.S. Supreme Court, the University of Texas at Austin defends diversity but denies that race is being used in any way that puts a person from a particular race at a disadvantage.


“Diversity improves academic outcomes and better prepares students to become the next generation of leaders in an increasingly diverse society,” the brief says in one passage. “Consistent with the holistic and modest way in which race is considered, it is impossible to tell whether an applicant’s race was a tipping factor for any given admit,” it says in another.

Proponents of affirmative action say the brief makes a strong case for not overturning the 2003 case that allows race-conscious affirmative action, but one observer is skeptical as to how persuasive the university’s arguments will be in convincing U.S. Supreme Court Justice Anthony Kennedy, the one justice whose opinion will likely determine the outcome of the case.

“I thought they were smart to target Kennedy, but they were incomplete,” said Richard D. Kahlenberg, a senior fellow at The Century Foundation.

Throughout the brief, UT Austin makes the case that they satisfied the concerns that Kennedy raised about the use of race to achieve numerical goals in his dissent in Grutter v. Bollinger, the 2003 case in which the court ruled that it was legal to narrowly use race in admissions decisions “to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.”

“But what they don’t mention, and this key, is that Kennedy also said he wanted race used as a last resort and he wanted to put more pressure on universities to create diversity through other means,” Kahlenberg said.

Kennedy’s vote is seen as the difference between a 4-4 vote – in which case Grutter would stand — and losing the case, 3-5. That’s because four of the court’s members — Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr., Antonin Scalia, and Clarence Thomas — are thought to be inclined to depart from the race-conscious affirmative action upheld in Grutter, whereas Justices Stephen G. Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor, are viewed as likely to rule in favor of UT Austin.

Dr. Gary Orfield, director of the Civil Rights Project at UCLA, said UT Austin made a strong case that the university is using race in a way that was approved by the Supreme Court when it last took up the issue of race-conscious affirmative action in 2003.

“What stood out for me was [UT Austin] made a very strong argument that none of the conditions that were central to the decisions of the Supreme Court in 2003 have changed, and the University of Texas’s policy is completely congruent with the rules the Supreme Court gave them,” Orfield said in reference Grutter.

Orfield said to “change a precedent this important this fast” would be hurtful to higher education.

Others agreed that it’s too soon to revisit Grutter, echoing a position that Justice Sandra Day O’Connor expressed in Grutter when she wrote in the majority opinion, “we expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

“I’m not necessarily buying the 25 years,” said Shirley Wilcher, executive director of the American Association for Affirmative Action, saying that it may be even further into the future before it makes sense to revisit affirmative action in higher education. “It depends on what’s going on,” she said, citing longstanding racial inequities in housing, criminal justice and other spheres of American life that may not be abated 25 years after Grutter, or 2028.

Kahlenberg agreed that UT Austin made a “strong argument” for not overturning Grutter.

“The Grutter decision is only nine years old, and you have to have a very strong reason to overturn a precedent like that,” Kahlenberg said.

However, Kahlenberg was critical of the brief’s other arguments, saying he did not think they were likely to prevail.

“This is a fairly conservative Supreme Court,” Kahlenberg said. “And the facts in the Texas case are not particularly strong for affirmative action.”

Kahlenberg said he thought UT’s case is hurt by the fact that the institution was able to achieve more diversity using its “top 10 percent law” — which guarantees admission to UT to any Texas high school graduate who is ranked in the top 10 percent of his or her high school class — and socioeconomic affirmative action than it did when it had previously used race.

He said the two arguments the university put forth in response to those facts is that while there may be racial and ethnic diversity in the school as a whole, it doesn’t exist at the classroom level.

“But I’ve never seen the Supreme Court look at it that way  — at the classroom level,” Kahlenberg said. “It’s always been at the school-wide level. So I think that argument is unlikely to prevail.”

Kahlenberg also found fault with UT’s argument that race needs to be considered in admissions in order to admit African-American and Latino students who may not be in the top 10 percent but who have “varied socioeconomic backgrounds” and are less likely to be first-generation college students and would do much to break down racial stereotypes.

“The argument advanced at the University of Texas is that the ten percent plan is not sufficient because many of the minority students are from clusters where they’re more likely to be economically disadvantaged and that will reinforce stereotypes,” Kahlenberg said. “But to my mind, those are the most sympathetic cases. Most American people can understand if African-American or Latino students come from economically disadvantaged backgrounds, they need a leg up.”

“The University of Texas highlights the weakest case. They say we need to be able to use race so we can bring in upper middle class African-American and Latino students,” Kahlenberg said. “And those are the very sets of students that are likely to be less sympathetic in the eyes of the public.”

“If you look at it through the eyes of the Supreme Court justices, I think … this premise is unlikely to persuade the key justices.”

One critic of affirmative action said UT Austin should not prevail regardless of how strong of an argument they make about how narrowly race is used in its admissions process.

“No matter how small a factor they say race is, it ought to count for zero,” George Leef, the director of research at the John William Pope Center for Higher Education Policy.

He said a student may be from an “underrepresented” group and “yet be culturally indistinguishable from the great mass of the students admitted,” while another student may be an extraordinarily accomplished person with an exceptional personal story, “but if he or she is not regarded as being from an ‘underrepresented’ group, the admissions office may say ‘no.’”

“Pigeon-holing students according to racial groups is both a bad educational policy and one that government institutions should not be permitted to engage in,” Leef said.

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