Higher education expert Donald E. Heller helped the legal team defending Michigan’s use of affirmative action. Heller, who is now the provost and vice president at the University of San Francisco, shared his thoughts on Thursday’s historic vote.
By Donald E. Heller
On Thursday morning, the Supreme Court announced its long-awaited decision in the case of Fisher v. University of Texas. Higher education leaders around the country have been waiting to see if the nation’s highest court would uphold the right of public universities to use race-based affirmative action in their admissions processes. Much to their relief, the court found in favor of the University of Texas, thus affirming its earlier rulings that affirmative action was legal.
In 2007, Abigail Fisher applied for admission to the University of Texas at Austin, the state’s public flagship university. Fisher, a white woman, was denied admission, and in 2008 filed suit against the university alleging that the university discriminated against her because it took the race of applicants into account in its admission process.
The university prevailed in the original federal trial, the court finding that the university’s use of affirmative action was legal under the precedent set by the Supreme Court in Grutter v. Bollinger, in which the court found that the University of Michigan’s use of race in law school admissions was acceptable under the Equal Protection Clause of the constitution. Fisher and her team appealed the trial court’s verdict, and after an earlier visit to the Supreme Court and then back to the appellate court, Thursday’s decision in support of the University of Texas effectively ends the case for Fisher.
While this decision directly affects just one institution, its implications for public higher education are much broader. The Fisher case provided an opportunity for the Court to overturn its earlier ruling in Grutter, which emphatically declared that affirmative action in university admissions was allowable under the constitution. And it was allowed not just to remedy past discrimination, but more importantly, for the benefit of creating a more racially diverse student body.
Numerous amicus briefs submitted to the court in the Grutter case (and its companion case, Gratz v. Bollinger, which challenged the use of race in undergraduate admissions at Michigan) argued for the educational and social benefits that accrued to all students when a university was more diverse. The Supreme Court accepted that argument, and reaffirmed that affirmative action in college admissions met constitutional muster.
The court’s upholding of the legality of affirmative action in Fisher is an important victory for higher education. Many of the critics of affirmative action argue that its application interferes with the meritocratic criteria, i.e., standardized test scores and high school grades, that should be the sole determinants of which students are admitted to college. But most public universities that use affirmative action apply “holistic review” in admissions, in which grades and test scores are only one part of the admissions criteria along with other components including essays, recommendations, and student activities.
The application of affirmative action includes a student’s race in the criteria used to determine admission, and is an important tool for colleges’ attempts to craft a class of students who are reflective of the diversity of the nation. In 2014, the nation’s public elementary and secondary schools became majority minority for the first time, i.e., fewer than 50 percent of students were white Americans. Higher education is currently not reflective of this diversity, as colleges and universities enroll a student body that is still predominantly white.
Without the ability to take race into account in admissions, many of these institutions would have student bodies that were even less reflective of the diversity of the pipeline of students coming out of our high schools. Every action that has prohibited public institutions from using affirmative action, including the passage of Proposition 209 in California in 1996, the decision in the Hopwood v. University of Texas federal court case in 1996, and the Michigan Civil Rights Initiative in 2006, has been found to have a dampening effect on the enrollment of minority students in these universities.
In Thursday’s Fisher decision, the Supreme Court accepted the assertion of the University of Texas that it had been unsuccessful in finding ways to enroll a diverse class of students after affirmative action was outlawed by the Hopwood decision. The court summarized its finding by stating, “Perhaps more significantly in the wake of Hopwood, the University spent seven years attempting to achieve its compelling interest using race-neutral holistic review. None of these efforts succeeded, and petitioner [Fisher] fails to offer any meaningful way in which the university could have improved upon them at the time of her application.”
These words of the court echo my own experience in working on the Gratz case for the defendants. I assisted the University of Michigan legal team in determining if there were alternatives to the use of race in undergraduate admissions that would allow the university to achieve an equally diverse student body. What we found, as did the Supreme Court in Fisher, is that nothing can substitute for race-based affirmative action when it comes to creating a more racially-diverse student body.
Some have argued that affirmative action should be based on income, rather than race, with poorer students getting the extra attention in the admissions process. This, they argue would increase diversity in a race-neutral fashion, because of the strong correlation between race and income in our society (African American and Hispanic families, on average, have incomes well below those of whites and Asian Americans). But the team I worked with on the Gratz case and other researchers have found that basing affirmative action on income rather than race would simply draw on the larger pool of poor white students in the country as compared to African Americans and Hispanics, and would not increase racial diversity in higher education.
This decision by the Supreme Court is a clear affirmation that taking race into account in college admissions passes constitutional muster, and that there is a strong and compelling interest in having a student body in public institutions that is reflective of the diversity of our nation.