Massachusetts colleges are gearing up for a fight over the use of racial preferences in admissions, as the US Supreme Court prepares to consider the constitutionality of affirmative action in higher education for the second time in a decade.
On Tuesday, the court agreed to hear the case of Fisher v. University of Texas, in which two white applicants to the school argue that it rejected them unfairly because some state admissions procedures favor racial and ethnic minorities.
Though arguments will not begin until October at the earliest, schools are already scrambling to figure out what a ruling might mean for them. Any decision that differs from the court’s previous stance could affect not just public institutions but also private ones, which are barred from discriminating under a statute that regulates some types of federal funding.
“This suit was filed in 2008, and since then it has been on everybody’s watch list,” said Laurie Pohl, vice president for enrollment and student affairs at Boston University.
The court ruled nine years ago in Grutter v. Bollinger, which involved Columbia University, that the Constitution does not prohibit some limited uses of race in admissions. But justices who have joined the court since then may be inclined to nullify their predecessors’ decision.
“The court now has five justices who are quite starkly committed to the view that no attention to an individual’s race is ever justifiable in a public setting,” wrote Laurence Tribe, a prominent professor of constitutional law at Harvard University, in an email. A decision against the University of Texas’s affirmative action policy, he said, “wouldn’t surprise me at all.”
The uncertainty is unsettling for college administrators, who had expected that decision would endure at least 25 years.
After 2003, some schools had to abolish policies that awarded “points” for race — which were deemed unconstitutional — and all had to review their procedures to ensure compliance.
“The thing that has most disconcerted me is that it’s only nine years since the last ruling, and it’s taken us time to adjust to that,” said Tom Parker, dean of admission and financial aid at Amherst College. “I’ve never seen this kind of zigzagging. What happens if the swing vote changes in six or seven years? Do we revisit it again? This is not a way to establish law.”
Ada Meloy, general counsel for the American Council on Education, a national college advocacy group, said her organization would likely lay out its legal opinion on the new case by filing an amicus brief with the court, as it did in 2003.
“We hope the court will recognize how carefully done the Grutter case was and that it might still be wise to wait out the additional 16 years,” she said. “It’s better for schools not to have the winds shifting so frequently.”
Harvard, too, will probably sign on to an amicus brief. Its general counsel said in a statement that he anticipated the university would “express its views to the United States Supreme Court in the Texas case, just as we did in the prior two occasions when the Supreme Court took up this issue of vital importance to higher education.”
Many schools, including Harvard, have reported historically diverse applicant pools and incoming classes in recent years.
That trend could be reversed or slowed if the court rejects all forms of affirmative action in admissions.
“I will feel very sad if that happens, because it will have a big impact on the elite schools,” said Alane Shanks, president of Pine Manor College, a small school in Chestnut Hill that recruits heavily from disadvantaged groups.
Richard Kahlenberg, a senior fellow at the Century Foundation who writes frequently about college admissions, said universities might be able to compensate by refocusing recruitment on low-income students — a strategy that has the additional effect of increasing racial diversity, and one the Department of Education embraced in guidelines it provided to college admissions officials late last year.
“Right now, universities rely very heavily on racial preferences in admissions and give almost no weight to socioeconomic status,” Kahlenberg said. “Reaching out to low-income students of all races who wouldn’t otherwise be admitted can be an alternative means of achieving a healthy racial and ethnic mix.”
But Shanks, who wrote her doctoral dissertation on affirmative action, said such a policy would still cause too many underrepresented minorities to miss out.
“It just isn’t enough,” she said. “Socioeconomic status is important. But there are still way more poor white people than poor black people.”
A narrower ruling from the court might still affect public universities and colleges, though exactly how is unclear.
The University of Massachusetts, for instance, instituted a policy in 1992 “to eliminate or mitigate artificial barriers and to increase opportunities for the recruitment and advancement” of minorities, women, and other potentially disadvantaged groups. Like many colleges and universities - including the University of Texas - it takes race and ethnicity into account among a host of factors when deciding whether to admit students.
But the UMass policy is not identical to that of Texas, which guarantees in-state high school students entry if they graduate in the top 10 percent of their class. That rule was introduced partly as a way of increasing diversity without explicitly considering race, and could figure heavily in the Supreme Court case because the primary plaintiff missed the cutoff by just 1 percentage point.
Such nuance makes it difficult to extrapolate from the Texas policy to other schools, said Kevin Kelly, director of admissions at UMass Amherst.
“There isn’t a 10 percent rule in what we do, and sometimes the court’s decisions are very narrowly tailored,” he said. “In terms of what a decision might mean, it’s going to take a lot of smart people a long time to figure it out.”
For private colleges and universities — which typically follow the spirit if not the letter of policies at public schools — the potential ramifications are murkier but no less serious.
“Of course a constitutional ruling wouldn’t directly affect private institutions,” wrote Tribe, the Harvard legal specialist. “But they are subject to arguably more stringent restrictions under federal statutes governing the recipients of government funds, so the whole landscape could shift radically before too long.”