Supreme Court Deals Affirmative Action Another Blow, But Impact on Colleges and Universities Likely Limited

by Saul Ewing Arnstein & Lehr LLP
Contact

The U.S. Supreme Court continued its decade-long interest in the role of affirmative action in the higher education admissions process, and decided to uphold a state law banning the practice.  In Schuette v. Coalition to Defend Affirmative Action, the Supreme Court upheld a Michigan state law that outlawed the practice of considering race in admissions to that state’s public universities.

In 2003, a narrowly divided Supreme Court upheld affirmative action at the University of Michigan's law school, but struck down a different point-based method the same university employed for undergraduate admissions, because it made race too dominant a factor.  That set the stage for the state’s voters to pass a ballot proposal outlawing race-based admissions decisions in 2006.  The measure told the state’s public colleges and universities that they could no longer “grant preferential treatment” on the basis of race in their admissions policies.

The Supreme Court’s Decision in Schuette

In considering the challenge to the Michigan ban, the Supreme Court focused not on the appropriateness of affirmative action, but on when statewide votes are legitimate tools to set policies that have an impact on minority citizens.

The plurality opinion — written by Justice Anthony Kennedy and joined by Chief Justice John Roberts and Justice Samuel Alito — stressed that the court was not ruling on the constitutionality of the consideration of race in admissions, only on the right of states not to exercise their right to have such consideration at their public colleges.

"This case is not about the constitutionality, or the merits, of race-conscious admissions policies in higher education. Here, the principle that the consideration of race in admissions is permissible when certain conditions are met is not being challenged," the opinion says. "Rather, the question concerns whether, and in what manner, voters in the states may choose to prohibit the consideration of such racial preferences.

Where states have prohibited race-conscious admissions policies, universities have responded by experimenting with a wide variety of alternative approaches. The decision by Michigan voters reflects the ongoing national dialogue about such practices."

Justice Sotomayor, joined by Justice Ginsburg, wrote a lengthy dissent that strongly disagreed with the majority.

Justice Sotomayor wrote that Michigan voters "changed the basic rules of the political process in that state in a manner that uniquely disadvantaged racial minorities."  In order to obtain admissions preferences, they now would have to amend the state Constitution, she wrote, while other groups — such as alumni children or athletes — could obtain admissions preferences more easily, such as by lobbying administrators.

Effect and Import of Decision May Be Limited

The Supreme Court’s ruling does not invalidate last year's decision that, under certain circumstances, it is constitutional for public colleges and universities to consider race in

admissions. That decision — Fisher v. University of Texas at Austin — found that institutions have a right to consider race, but not an obligation to do so.  Schuette now adds to the jurisprudence by saying that states can reject the use of that right.

Eight states since 1996 have ended affirmative action in admissions decisions.  These bans now appear to be safe from challenge based on Schuette. Some legislators in other states have now expressed their support for adopting similar laws, but most expect there will be no groundswell in legislative activity.  The impact on colleges and universities may be just as limited.

Many institutions do not use race or ethnicity as considerations in their admissions decisions, but instead actively recruit minorities through different methods.  Some schools focus recruitment efforts in urban areas or other areas that have larger concentrations of minorities, particularly African-American and Hispanic students.   Institutions may also look to factors other than race — such as first-generation status or low-income backgrounds — in considering an applicant’s admission.  And in states where affirmative action bans do not exist, institutions may still consider race as a factor.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Saul Ewing Arnstein & Lehr LLP | Attorney Advertising

Written by:

Saul Ewing Arnstein & Lehr LLP
Contact
more
less

Saul Ewing Arnstein & Lehr LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.