Oct. 31, 2014

Prepare for the results of Fisher v. Texas

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October 18, 2012

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As the Supreme Court gets its new term underway, the eyes of college administrations are on Fisher v. Texas, a case that could have wide-reaching implications for how colleges use affirmative action in their admissions policies. Although the court’s decision likely won’t be issued in time to affect the admissions process for the Class of 2017, a decision could necessitate immediate and significant changes to the way the College of William and Mary operates. Because of how fast the legal requirements of admissions could change, it would behoove the College to start making preparations now instead of scrambling later.

The case involves Abigail Fisher, a white student denied admission to the University of Texas, who argued that admissions policies that give an advantage to minority students on the basis of race are unconstitutional because they violate the Constitution’s guarantee of “equal protection under the law.” Texas argued that the policy is valid because its program is “narrowly tailored” to meet a “compelling interest” of diversity, which is the current standard established in 2003 by Grutter v. Michigan. So far, two lower courts have upheld the University’s policy as meeting that standard.

However, the Supreme Court may view the case differently. The court is now viewed widely as being less amenable to affirmative action programs than it was in 2003. Justices Antonin Scalia, Clarence Thomas and Anthony Kennedy all voted to rule unconstitutional certain race-based admission policies in the Grutter case. Justices John Roberts and Samuel Alito, who have since joined the court, are seen as sharing similar judicial views, and those five votes would be enough to change the Grutter standards or overrule them entirely. These justices combined to form a majority in Parents Involved in Community Schools v. Seattle, a 2007 case whose ruling placed significant restrictions on school districts’ use of race in school assignments. They were all also noticeably skeptical of the University of Texas’s position during last week’s oral arguments in the Fisher case, which may suggest that they are inclined to rule in favor of restricting or banning the use of race in college admissions.

But the court is inherently unpredictable, and a wide range of options are possible, from upholding the current standard to completely outlawing any kind of affirmative action program at public universities. The College’s current admissions policy, which takes race into consideration in addition to numerous other factors when considering applicants could be affected significantly under a number of these possible rulings. If the court were to issue guidelines that conflict with the current policy, the College would be forced to quickly conform to the newly established guidelines, or else risk of a flurry of discrimination lawsuits from prospective students.

It’s important to note that while the Fisher case is only concerned with race, the College’s overall efforts to meet its goal of a diverse student body are much broader. The College likes to brag about its visible efforts to increase the enrollment of minority students, but true diversity also encompasses geographical, socioeconomic, cultural and experiential differences. With all the possible ways to bring together different types of students, it’s sometimes hard to pinpoint exactly where race should fit in. The task becomes even more difficult when the legality of policies that help to increase enrollment for particular racial groups comes into question.

Having policies that promote diversity is a goal toward which the College should strive. However, putting together a multidimensional policy that truly encapsulates everything that is diverse is tough, and it takes a lot of time. That’s the risk of waiting to act on this issue — having to revise the policy in such a short time frame that it wouldn’t be as thorough as we would expect from a high-quality school. The College can’t possibly know how exactly the Fisher case might change the boundaries in which its admissions policies operate, but it should be examining a number of possible legal outcomes, how they would change the current policy and what adjustments best represent the school’s commitment to diversity. Otherwise, it could find itself behind the eight ball in one of its most important goals.

Email Carter Lockwood at crlockwood@email.wm.edu.

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Carter Lockwood

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