The University will likely not be seriously affected by the U.S. Supreme Court’s ruling in the affirmative action admissions case Fisher v. University of Texas, which is expected to be decided by the court in May or June.
“There’s a very strong expectation that the court will do away with (affirmative action),” said Michael Tesler, assistant professor of political science. “It is highly debated whether it’s necessary or not.”
Tesler said the court is expected to rule in favor of Fisher in part because former Justice Sandra Day O’Connor — who was involved in the 2003 Grutter v. Bollinger Supreme Court ruling that formally established diversity as a “compelling interest” for universities to achieve — is no longer on the bench.
Vice President and General Counsel Beverly Ledbetter said O’Connor was a “central figure” in the 2003 case, adding that O’Connor had attended some of the Fisher arguments.
“America is perceived as less racist than it was before,” Tesler said, pointing to this shift as another important indication that the court is likely to rule in favor of Fisher. But Tesler — co-author of “Obama’s Race: The 2008 Election and the Dream of a Post-Racial America” — said his research shows “race is still very important in politics,” and the disparity between public understanding and reality “speaks to a really different worldview.”
The legal precedent for the Fisher case involves three other court cases, two of which have been deliberated by the Supreme Court, Ledbetter said.
In 1978, the Regents of the University of California v. Bakke ruling established that “affirmative action is legal,” Ledbetter said. About 20 years later, in 1996, a circuit court’s ruling in the Hopwood v. Texas case required the use of a race-neutral system in admissions decisions. In response to the court’s decision, the state legislature implemented a top 10 percent policy, guaranteeing admission to any public Texas college for residents graduating in the top tenth of their high school class.
In 2003, the Grutter v. Bollinger Supreme Court ruling allowed for less-restrictive use of affirmative action, permitting admissions policies that used race as one of many factors in evaluating individual applications. The University of Texas maintained the top 10 percent policy, and adopted “individualized review.” Fisher is debating the constitutionality of using race as a factor in the latter, said Ledbetter.
Though Ledbetter said one can “never know the reach of a Supreme Court verdict,” she noted “Brown is not a public university and fits squarely under Grutter.” The Supreme Court’s ruling is not expected to affect Brown’s current admissions policy, Ledbetter said.
“We believe in the core principles,” Ledbetter said. It is currently unconstitutional to use race quotas for selecting students from applicant pools, but Ledbetter said it is important to have a “critical mass” of underrepresented students to “allow for differences of expression among and within the group.”
“The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today,” O’Connor wrote in the Court’s majority decision for Grutter v. Bollinger.
Ledbetter said she agrees there should eventually be a time when affirmative action policies are no longer necessary, though it is not easy to predict when that time will come.