Race-based admissions before and after Fisher

February 6, 2013

Civil Rights Theme(Editor’s note: February is Black History Month, and the struggle for civil rights is a big part of that history.  Throughout the month of February, we’ll be looking at contemporary civil rights disputes, especially legal ones.)

Last October, I wrote a prediction of the outcome of Fisher v. University of Texas.

In it, I submitted that the Supreme Court was likely to strike down the race-based factors used in school admissions processes – the same that were upheld nearly ten years ago in Grutter v. Bollinger.

Fisher hasn’t been decided just yet, but the ruling is expected to be announced before the end the Supreme Court’s current term, at the end of June.

Suppose my prediction is accurate and the Court overturns Grutter – then what happens?

The short answer is that postsecondary schools (colleges, universities, law schools, medical schools, etc) will no longer be able to use race as a factor in their admissions processes.

But what does that actually mean?

Currently, schools are guided by 2003’s Grutter in determining what is constitutional when it comes to using race as a factor in their admissions processes.

Grutter reaffirmed Justice Powell’s tie-breaker vote in 1977’s Regents of the University of California v. Bakke.

Justice Powell’s opinion, which only gained a majority of votes as to the part that required the University of California to admit challenger Allan Bakke, held that the school’s racial “quota” system was unconstitutional, but that “the goal of achieving a diverse student body is sufficiently compelling to justify consideration of race in admissions decisions under some circumstances.”

Grutter upheld the University of Michigan Law School’s admissions program that viewed the race and ethnicity of an applicant as only one of many different “plus” factors (such as test scores, grades, letters of recommendation, and the applicant’s essay).

If the amicus briefs filed in Fisher are any indication, many postsecondary schools (with Harvard, Johns Hopkins, and Yale among them) utilize admissions processes very similar to that upheld in Grutter – processes that would be affected should the Supreme Court strike down Grutter.

Of course, that’s the obvious implication of such a ruling in Fisher – that race and ethnicity can no longer be used as a “plus” factor in postsecondary admissions processes.

Would this lead to an actual drop in enrollment for racial and ethnic minorities?  One would presume so, since both sides of the argument effectively concede that point, but such a drop may not be as significant as many would predict.

It’s more than apparent from the amicus briefs filed in Fisher that postsecondary schools are very much in favor of using race as a factor in their admissions processes.

After all, just because the Supreme Court’s Fisher ruling (presumably) says that maintaining a “diverse student body” is no longer “sufficiently compelling” to justify the use of race in admissions doesn’t mean that postsecondary schools feel the same.

Consequently, the practice may continue in a more covert way – much the same way that, although it’s illegal to do so, employers routinely refuse to hire a woman because she’s pregnant (they just contrive a different reason for rejecting the applicant).

What’s more, even if Fisher comes down in such a way that prohibits schools from even inquiring into an applicant’s race, I highly doubt that the ruling would bar applicants from disclosing their race in an admissions essay, especially if an essay question were (subtly) worded in such a way as to probe for that information.

A single institution’s admissions department, however, processes far more applicants than a single employer in a given year, and would be far more likely to get caught for an unofficial, unwritten admissions policy that takes race into account.

Nevertheless, if racial minority enrollment numbers fail to see the expected drop after Fisher strikes down Grutter, it’s likely not due to the sudden lack of these programs’ necessity to bolster student body diversity.  Rather, it’ll most likely be due to the institutions’ continued use of such factors in a more concealed fashion.

If this comes to pass, it may demonstrate that the Supreme Court isn’t always the final arbiter of what interests are, in fact, “compelling.”