End of the Road for Racial Preferences?
(Note: Mr. Levey and his colleagues at the Center for Individual Rights represented Barbara Grutter and Jennifer Gratz in the University of Michigan cases – Grutter and Gratz – in which the Supreme Court last addressed the use of race-based admissions in higher education.)
We applaud the Supreme Court’s decision today that race may not be used as a factor in admissions where “workable race-neutral alternatives would produce the educational benefits of diversity.” The decision means a diminished role for race and an increased emphasis on socioeconomic disadvantage in admissions.
The Supreme Court remanded the case for consideration of whether its standard was met by the University of Texas at Austin. But that does not subtract from the importance of the new standard, which universities will ignore at their own peril given the Court’s lopsided vote – the 7-1 decision was joined by all of the liberal Justices except for Ginsburg (Kagan was recused) – and the opinion’s clear language.
The Supreme Court made clear that when evaluating a university’s claim that race-neutral alternatives (such as Texas’s Top Ten Percent Plan Texas) are insufficient to produce a diverse student body, “the University receives no deference." The less rigorous standard that resulted from some interpretations of Grutter, where good faith consideration of race-neutral alternatives was sufficient and judicial deference to schools was generous, is gone. As the Court said today:
Most importantly from a practical standpoint, today’s decision shifts the burden of proof to universities: "[S]trict scrutiny imposes on the university the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice."
In the longer term, we are hopeful that today’s decision presages the end of the road for admission systems that explicitly take race into account. The Fisher decision is just a step – albeit an important one – along that road. No one can say how fast the end will come or how much more litigation will be required but, after today, the handwriting is on the wall for the decline of race-based admissions.
Ironically, the Supreme Court’s decision to remand the case rather than strike down Texas’s admission system may hasten the demise of race-based admissions. By ensuring that the lawsuit against the University of Texas continues to be litigated – possibly going back up to the Supreme Court at some point -- the decision keeps the issue of racial preferences in the public eye. That cannot be good news for advocates of racial preferences, because all indications are that Americans overwhelmingly oppose such preferences, as indicated both by the passage of anti-preference ballot initiatives in the blue states of Michigan, California and Washington and by numerous opinion surveys. For example, a 2009 Quinnipiac University Poll found that Americans by a two-to-one margin “oppose affirmative action programs that give preferences to [blacks or Hispanics] in hiring, promotions and college admissions” (61% opposed and 33% supported preferences for blacks; 29% supported preferences for Hispanics).