It looks like, come October, the Roberts Court may get the chance to weigh in on race-conscious admission policies at public colleges and universities, raising the concern that the court will unwind racial discrimination protections in education the way they have in employment.
The last time the court looked at race-conscious admission policies was in 2003 when it issued a pair of controversial decisions involving the University of Michigan. The first, Gratz v. Bollinger, held that the university’s undergraduate admissions policy was unconstitutionally discriminatory because it automatically awarded a bonus to applicants who were members of underrepresented minority groups.
But in the second decision, Grutter v. Bollinger, the court upheld the law’s school’s policy of considering race as part of a holistic evaluation of an applicant finding that the government had a compelling interest in diversity, including seeking a “critical mass” of minority students. Taken together, the rulings appear to allow colleges and universities to use an applicant’s race as part of the admissions consideration so long as that admission policy is, among other things, narrowly tailored, free of quotas, flexible and individualized, does not award points simply on the basis of race and faces periodic review.
Winding through the appellate system now are two new cases that may call into question the Gratz and Grutter decisions. One comes from Michigan and the other from Texas.
The Michigan case involves the state’s 2006 constitutional amendment that forbids the state’s public colleges and universities from granting “preferential treatment to any individual or group on the basis of race, sex, color, ethnicity, or national origin.” A panel of the U.S. Court of Appeals for the 6th Circuit, in a 2-1 decision, ruled that the amendment violates the Equal Protection Clause of the 14th Amendment because it restructures the state’s political structure to the detriment of minorities. Michigan Attorney General Bill Schuette (R) has asked the full circuit to review the decision and has promised a petition to the Roberts Court should he lose before the full circuit.
The Texas case involves a race-conscious admissions policy at the University of Texas-Austin. Texas law provides that graduates in the top 10 percent of their Texas high school may be automatically admitted to any state university. Those students represent a large portion of freshman classes and, by one estimate, about 30 percent of those students are from underrepresented minority groups. But UT officials do not feel 30 percent is enough in a state in which, very soon, there will be no racial majority, so it instituted a policy that, according to a split panel of the 5th Circuit Court of Appeals, satisfies the requirements set forth in the Grutter decision. The justices dissenting in this case all but invited the Supreme Court to step in, and the plaintiff’s have until September to file their petition for review.
Photo from steakpinball via flickr.