The Supreme Court will revisit the use of race as a factor in university admissions decisions, putting in jeopardy court precedent allowing affirmative action as a means to maintain diversity in higher education.

The new case, Fisher v. University of Texas at Austin, gives the Court an opportunity to ban the use of race in the admissions process, which it had narrowly allowed in the 2003 Grutter v. Bollinger decision. The case will be argued Oct. 10.
If public universities are not allowed to use race as a factor in admissions, private universities could also be directly affected.

Brandeis, along with 35 other universities, has signed onto an amicus curiae (friend of the court) brief in support of using race as a factor in admissions. Brandeis filed a similar friend-of-the-court brief in 2003, supporting the University of Michigan's use of affirmative action.

The current brief argues that "diversity among students is vitally important to the educational process," and "diversity is not one-size-fits-all and thus institutions of higher learning should have latitude to take diversity into account in admissions in ways that further their particular educational emphases and missions."

Although University President Frederick Lawrence was cautious not to make any interpretations or predictions of the decision's potential impact, he said in an interview with the Justice that he will pay close attention once the Court hands down its decision.

"That's something we follow with great focus and once a decision comes down, I assure you that not just our lawyers will study it, but I will study it as a president and as a legal scholar to see whether it has any impact on us," Lawrence said. "But right now I have not suggested that our admissions process change at all in anticipation of the decision."

Diversity: an "educational goal"

The Supreme Court first decided the issue of affirmative action in college admissions in 1978, when a white man, Allan Bakke, claimed he was excluded from the University of California Davis Medical School solely on the basis of race.

The case had mixed results. The Court ruled against the University of California because it used a rigid racial quota system, but Justice Lewis Powell upheld the use of race as one of many factors in an admissions process to preserve diversity as an important component of education.

Following that precedent in 2003, the Supreme Court allowed a University of Michigan Law School admissions policy that used race as a factor. The majority opinion, written by Justice Sandra Day O'Connor, endorsed Justice Powell's analysis in Bakke.

Lawrence, himself a civil rights legal expert, said in an interview with the Justice in July that ensuring diversity is a key element of the school's educational goal.

"One of the ways in which people learn is from people of different backgrounds. It's not just that it's part of the social justice mission of the school; it's part of the educational mission of the school," he said.

He said that diversity is not limited to race or ethnicity, but also includes extracurricular talents, geography and other factors.

Lawrence said that he would not call using race as a factor in admissions discrimination.

"Brandeis is committed to a world without discrimination and that is true of our admissions policy," he said. "We do not discriminate on any basis in our admissions policy, and Brandeis is also deeply committed to a mission of social justice and as a result that has major impact to how we try to reach out and have as broad and diverse a student body as we can."

He said it all comes down to a misconception of the admissions process: "It's not as if there are two people for this spot and you pick one of them, and three people for that spot and you pick one of them."

Lawrence said Brandeis considers a range of factors in admissions; while some factors are objective, like standardized test scores and grade point average, others are less so, like athletic or artistic skills.

"In order to achieve all of that in a class, sure, [race is] a factor, but it just doesn't come down to 'here are two people we are going to take one and not the other and then let's look at this factor to make that decision - that's not how admissions decisions get made," Lawrence said.

Lawrence and admissions officers have referred to this as a holistic admissions approach, which was approved by the Supreme Court.

The amicus brief signed by the University states, "consideration of race as one factor in a holistic admissions process is a narrowly tailored means to achieve diversity on college and university campuses and thus passes constitutional muster."

Threat to Brandeis policies

In the new case, Abigail Fisher, a white Texas resident, filed a suit after she was rejected from the University of Texas at Austin. She argued that the university, which considers race in its admissions process, discriminated against her and rejected her because of her race.

The friend-of-the-court brief which Brandeis joined calls for the Court to allow academic institutions to determine their educational needs and goals. "As part and parcel of the bedrock concept of academic freedom, courts should give due consideration to colleges and universities' experience and judgment regarding the best composition of their own student bodies and how to achieve that composition," it reads.

The Court's composition has changed since the decision in Grutter v. Bollinger, the University of Michigan Law School case that allowed affirmative action, leading some Court analysts to believe that the Court is likely to make a decision limiting or abolishing affirmative action, according to SCOTUSblog.

Three dissenters from Grutter remain on the Court - Justices Clarence Thomas, Antonin Scalia and Anthony Kennedy. Justice Samuel A. Alito, Jr. has replaced O'Connor, who authored the majority opinion in Grutter.

Chief Justice John Roberts has also voted against forms of affirmative action.

Only two members of the 5-4 Grutter majority remain on the CourtJustices Ruth Bader Ginsburg and Stephen Breyer-and Justice Elena Kagan has recused herself.

Lawrence declined to offer his own prediction on the outcome of Fisher, and he added that the Court is not easy to predict.

He did say, however, "Where we stand today is that it is highly unlikely in my view that the Court is going to make an educational decision to tell educational institutions-private universities-that they can't look at a whole range of factors and use that big range of factors to select the best class for the overall educational experience of the school."

Lawrence also said he is "surprised" that the Court is taking another look at affirmative action only a decade after Grutter.
In December, the Obama administration released new guidelines for the use of race in university admissions.

The federal report stated, "An institution may permissibly aim to achieve a critical mass of underrepresented students," and that "post-secondary institutions can voluntarily consider race to further the compelling interest of achieving diversity."
University officials at the time said the guidelines would have little impact on Brandeis policies because the University already uses race as a factor in the admissions process.