The Washington Post

Supreme Court receives outpouring of conflicting views on affirmative action


Gail Heriot and two other members of the U.S. Commission on Civil Rights would like the Supreme Court to know that new research indicates that race-preferential admissions to America’s top universities are hurting those they are supposed to help.

“If this research is right, we now have fewer minority science and engineering graduates than we would have under race neutral admissions policies,” Heriot said in an amicus brief filed along with fellow commissioners Peter Kirsanow and Todd Gaziano.

Robert Barnes has been a Washington Post reporter and editor since 1987. He has covered the Supreme Court since November 2006. View Archive

“We have fewer minority college professors . . . fewer minority lawyers too.”

The American Educational Research Association would like the Supreme Court to know that Heriot and her fellow conservatives on the commission have it all wrong.

“Research continues to show that student body diversity leads to important educational benefits,” the group, along with other research associations, said in its amicus brief to the court.

Claims to the contrary are “unsupported suppositions that numerous researchers have called into question,” the brief said.

By the time the Supreme Court on Wednesday hears oral arguments about the University of Texas’s limited consideration of race in some admission decisions, the justices and their clerks will have plowed through 92 “friend of the court” briefs filed in Fisher v. University of Texas.

Abigail Noel Fisher, who is white, says the university’s policy resulted in African American and Hispanic students with lesser credentials being admitted to UT in 2008 while she was denied. UT says race is just one of many characteristics it considers in a “holistic” review of some applicants to build a diverse class, as governed by past Supreme Court decisions.

The outpouring of amicus briefs — 73 on behalf of UT, the rest supporting Fisher or opposition to affirmative action — signals the importance of the case. But it also reflects a trend at the court.

Each year seems to bring a record number of amicus briefs from outside groups — 95 percent of cases with signed opinions last term drew at least one amicus brief, according to a report by Washington lawyers Anthony J. Franze and R. Reeves Anderson. The health-care cases saw a record-breaking 136 amicus briefs.

The point of such briefs, according to Lisa S. Blatt, a frequent Supreme Court practitioner, is not to necessarily provide the winning argument but to inform the justices of the consequences.

“The parties (to the case) have to make the legal arguments,” Blatt said. “The amicus briefs explain to the court the importance of what the decision means to everyone else. In this case, not just the 50,000 students at UT,” but to students in universities across the country.

Before the health-care cases, the record for amicus briefs came in 2003 — the last time the Supreme Court considered affirmative action in university admissions, and approved racial considerations by the University of Michigan Law School. One brief in Grutter v. Bollinger is inevitably cited as a model for the genre.

It was filed on behalf of retired military leaders from a wide ideological spectrum. It said the military depended on drawing from a diverse group of graduates from the nation’s top universities.

“The military cannot achieve an officer corps that is both highly qualified and racially diverse unless the service academies and the ROTC used limited race-conscious recruiting and admissions policies,” the brief said.

It received much attention during oral argument — Justice John Paul Stevens referred to it as the “Carter Phillips brief,” referring to the longtime Supreme Court practitioner, even though the counsel of record was Phillips’ partner Virginia Seitz.

And Justice Sandra Day O’Connor quoted extensively from it in her opinion that upheld Michigan’s policy.

In the Fisher case, opponents of affirmative action hope for a similar breakthrough by telling the court that racial preferences have harmed rather than helped.

A fourth Civil Rights Commission member, Abigail Thernstrom, says affirmative action undermines race relations “by heightening stereotypes and creating greater separation and self-segregation between racial groups.”

She adds that the preferences create disincentives for black and Hispanic students to work hard and they increase those students’ “self-doubts about their abilities to succeed academically.”

Affirmative action opponents urge the court to consider the theory that race-preferential admissions policies have resulted in a “mismatch” of selective universities and minority students unprepared for the academic rigor they require.

The theory is advanced by UCLA law professor Richard Sander and journalist Stuart Taylor Jr. in a new book and in a brief to the court. They say there are wide academic gaps between minority students admitted because of their race and their fellow students, and lead to lower grades and graduation rates and cause some students to switch to less-challenging majors.

But another objective of amicus briefs is to make sure no assertion goes unchallenged.

So UT’s amici include “95 experimental psychologists” and “444 American social science researchers” and “57 Fortune 100” companies with testimonials to the importance of diversity.

Blatt filed a brief on behalf of the American Psychological Association that said “campus diversity reduces prejudice, enhances leadership skills, and better prepares students to participate in modern civic society and the contemporary workplace.”

It calls the mismatch theory “dangerous” and “discredited,” and says numerous studies have proved that “a university’s consideration of race as a factor in admissions narrows retention rate gaps between different student groups.”

Which leaves the eight justices — Justice Elena Kagan recused herself from the case, presumably because she had worked on it as President Obama’s solicitor general — to sort it out.

For previous High Court columns, go to

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