U.S. Supreme Court May Strike Down Affirmative Action

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The Obama Administration on Monday urged the Supreme Court to uphold the use of race in the University of Texas’s college admissions process, saying the controversial practice advances an essential government interest.

Solicitor General Donald B. Verrilli Jr. filed the amicus brief in Fisher v. University of Texas—a brief co-signed by counsel representing five different federal agencies and the Justice Department.  In the filing, the government argues that considering race when admitting students to universities makes a critical contribution to the function of the federal government.

“The government… has a vital interest in drawing its personnel—many of whom will eventually become its civilian and military leaders—from a well-qualified and diverse pool of university and service-academy graduates of all backgrounds who possess the understanding of diversity that is necessary to govern and defend the United States,” the administration writes, citing as examples the Department of Defense and the Armed Services, federal law enforcement and national security, the Department of Health and Human Services and other federal agencies.

The muscular brief is of particular note since President Barack Obama and his administration rarely discuss issues of race or race-based government action in public, despite or because of Obama’s status as America’s first black president. Civil rights leaders complain that the administration sometimes seems nearly paralyzed by such issues. It took nearly three years for the administration to issue guidance on the permissible use of race by schools and colleges. However, the Justice Department has moved to block voter ID laws that the administration says will disenfranchise minorities.

In a recent interview, Obama said he’d taken numerous actions that helped African Americans, but he defended not singling that group out for help. “I’m not the president of black America,” he told Black Enterprise magazine.

The Texas case accepted by the Supreme Court was brought by a white student denied admission to the university in 2008. She claims she was discriminated against on the basis of race, in violation of the 14th Amendment. Both the appellate court and district court sided in favor of the university, with the appellate court saying based on the precedent set in the 2004 Supreme Court case of Grutter v. Bollinger, the U.T. admissions policy was “narrowly tailored” enough to its objective and “was adequately supported by the ‘serious, good faith consideration’ required by Grutter.”

In Grutter, the last Supreme Court ruling on race and college admissions, the court upheld the University of Michigan Law School’s use of race in admissions, saying its plan supported a “compelling interest” in increasing diversity. The opinion was 5-4; at the time, the majority consisted of Justices Sandra Day O’Connor, John Paul Stevens, David Souter, Ruth Bader Ginsburg and Steven Breyer.  Dissenting were Chief Justice William Rehnquist and Justice Antonin Scalia, Anthony Kennedy and Clarence Thomas.

Of those justices, remaining on the court today from the majority are Ginsburg and Breyer, and from the minority are Scalia, Kennedy and Thomas. Due to her role in an amicus brief the government filed earlier in the Fisher case, Justice Elena Kagan will not take part in the Supreme Court’s consideration of the matters. That means the five hold-overs will be joined by Chief Justice John Roberts and Justice Samuel Alito, who often agree with the Scalia-Kennedy-Thomas bloc, and by Justice Sonia Sotomayor, considered part of the high court’s liberal wing.

Since only eight justices will hear the case, if the panel were to split 4-4, the appellate court decision upholding the policy would stand.

There is another ruling that could offer a glimpse into how the court might decide the case. In 2007, Roberts, Scalia, Kennedy, Thomas and Alito formed the majority in Parents Involved in Community Schools v. Seattle, which ruled the Seattle School District’s use of race as the second most important tiebreaker in high school admissions was unconstitutional.  The majority found the schools were not aiming for a compelling interest of diversity in education, but rather the goal was maintaining certain demographics at their schools, and they also held the Seattle schools’ method was not narrowly tailored enough to its goal. The court further held Grutter was specific to goals of higher education, and thus did not govern in Parents Involved.

In today’s brief, the government argues that the decision in Parents Involved should instead support the University of Texas’s position.

“In Parents Involved, school districts used race to dictate school assignments,” the brief argues, instead of other, “less restrictive measures.”  Drawing from Kennedy’s concurring opinion, the government writes, “One such means would have been a ‘more nuanced, individual evaluation of school needs and student characteristics that might include race as a component’ and that would be ‘informed by Grutter.’ …That individualized evaluation is precisely what the university has instituted.”