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UNITED STATES
Affirmative threat to private-sector admissions
Once again, the United States Supreme Court will soon pass judgment on affirmative action as a factor in admissions in America’s most selective universities and colleges.

As in previous cases, a Euro-American student filed a lawsuit against a highly selective public university, in this case the University of Texas at Austin (UT). The plaintiff, Abigail Noel Fisher, claims overt racial discrimination when UT rejected her freshman application in 2008.

Her lawyers filed the case that same year, and it wound its way to a district court where Texas prevailed. Fisher appealed and the Supreme Court decided to review the case and began deliberations last October. This court is decidedly more conservative than in the past and seemingly more sympathetic to simply ending affirmative action.

There has been much attention on one or two perceived swing voters. Because Justice Kagan recused herself due to her former position as US solicitor general, which generated an earlier brief in support of UT in the case, eight of the nine justices will decide the case.

A four-to-four vote, a real possibility, leaves the lower court's decision in the case intact and binding – in this case, the ruling in favour of UT.

With Kagan out of the mix, Alito, Thomas, Scalia and Roberts, it seems, would vote in favour of Fisher’s argument.

Most pundits assume that Justice Kennedy will decide the case. In earlier decisions, Kennedy has seemingly supported narrowly tailored race-conscious admissions policies. But he voted on the minority side in one earlier case, arguing that the University of Michigan’s law school had used “numerical goals indistinguishable from quotas”.

Kennedy indicated his predilections in his give-and-take with UT’s lawyers when he questioned the inclusion of upper-income African Americans and Hispanics as meeting affirmative action racial criteria.

Others suggest that Kennedy might reject UT’s particular use of race, specifically the seeming favouritism towards upper-income minorities, but uphold the basic tenets of 1978 Bakke and 2003 Grutter decisions that race could be one factor among many in admissions decisions.

We will see whether Kennedy’s views will ultimately decide the case, or if we are surprised once again – as we were in the Obamacare law ruling – by Chief Justice John G Roberts.

Ivy league

There may be another factor that will influence the justices’ decision.

All of the court’s justices are products of Eastern elite private educations – each with law degrees either from Harvard or Yale. How the case might ultimately influence or, to be more exact, interfere in the admissions decisions of the Ivy League and similar institutions, may emerge as a concern for one or more of the conservative block of justices.

Thus far, selective private colleges and universities have avoided scrutiny in their admissions practices. They have rarely been open about how they make their decisions.

Most private institutions, for example, have policies that favour children of alumni or benefactors – a major factor for selective private institutions, such as Harvard, where over 20% of the students are ‘legacy’ admits. But this is not clearly articulated to the general public or, specifically, to prospective students.

At the same time, selective private, non-profit universities and colleges are clearly quasi-public institutions: they rely on student financial aid supplied by federal and, in some cases, state governments, and they claim a large percentage of federal research dollars and must meet federal rules and guidelines such as Title IX.

These institutions also claim, and serve, a larger public purpose beyond their origins as largely sectarian entities, serving a defined and limited population. At the same time, selective public universities are becoming increasingly quasi-private as public funding plummets. The dividing line between these selective private and public institutions in terms of public purpose is increasingly grey, to say the least.

Why should private institutions play by one set of alternative universe rules in admissions? Could a decisive ruling in favour of Fisher lead to a court-induced foray into limiting admissions practices at private institutions as well?

Previous Supreme Court decisions, including Bakke, have stated that Title VI of the 1964 Civil Rights Act making racial discrimination illegal does extend to private universities that receive federal financial support.

Private sector concerns

Worries over the possible Supreme Court ban on using race is one reason that Columbia University and Fordham University, in association with a group of Catholic institutions, filed separate friend-of-the-court briefs in support of UT.

An overturning of Bakke and Grutter would, it appears, spawn new lawsuits against selective private institutions, and possibly open the door for an eventual Executive Order via the White House to regulate their admissions practices – an event more likely under a conservative Republican president, with none on the immediate horizon.

Of course, this is pure conjecture and a bit cynical.

But perhaps the issue looms in the back of the minds of a group of justices, even if this is a notion not fully articulated. A fear of venturing into the admissions practices and prerogatives of private entities (whatever they be) might, in the end, actually preserve what is now nearly four decades of precedent in US law.

There are other, more important reasons why the court should rule against Fisher, in my view.

To a degree unmatched by any other single institution in the US, or by any other nation in the world until recently, America’s public universities were conceived, funded and developed as tools of socioeconomic engineering – an observation perhaps uncomfortable for those who view markets and the rugged individual as the hallmark of the nation’s development.

The goal was not simply to benefit the individual, but to support socioeconomic mobility and integration within a nation of immigrants, to shape a more progressive and productive society.

Any decision on affirmative action needs to keep this American vision viable by providing our universities and colleges, public and private, the autonomy to shape their incoming pool of students.

* John Aubrey Douglass is senior research fellow at the Center for Studies in Higher Education (CSHE), and the author of The Conditions for Admissions: Access, equity and the social contract of public universities. Stanford University Press, 2007. This article reflects a longer essay, "Affirmative Action, the Fisher Case and the Supreme Court" published online as part of the CSHE, University of California Berkeley’s Research and Occasional Paper Series.
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