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IU Communications

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IU Maurer School of Law

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Chuck Carney
IU School of Education

Last modified: Monday, October 8, 2012

Indiana University legal experts available to comment on affirmative-action case

Oct. 8, 2012

BLOOMINGTON, Ind. -- The U.S. Supreme Court will revisit the heated topic of affirmative action in higher education when it hears oral arguments Wednesday, Oct. 10, in Fisher v. the University of Texas.

The case results from a challenge to admissions policies at the university. Abigail Fisher, a white Texas resident, claimed she was denied admission to the University of Texas in Austin because of her race, while less-qualified minority applicants were admitted. A federal district court and the Fifth Circuit Court of Appeals ruled in favor of the university. But many are predicting the Supreme Court will put new restrictions on the consideration of race.

Indiana University legal experts are available to comment on the case and its implications for education.

Decision likely to depend upon Justice Kennedy
Decision would affect K-12 schools, not just higher education
Two factors critical in high-impact session

Decision likely to depend upon Justice Kennedy

Justice Anthony Kennedy's vote will be the deciding factor in the case, with potentially devastating results for affirmative action, says Kevin Brown, an expert on race and education at the IU Maurer School of Law.

"Nine years ago, in Grutter v. Bollinger, the court held that the University of Michigan could consider race as one factor in a narrowly tailored plan to achieve racial diversity," Brown said. "However, Justice Kennedy dissented, which gives us a good indication of what his opinion in Fisher might be."

Brown noted that Kennedy's separate dissenting opinion in the Grutter case stated that "there is no constitutional objection to the goal of considering race as one modest factor among many others to achieve diversity." However, Kennedy objected to the way the University of Michigan Law School achieved this goal. He wrote that the law school's attempt to achieve a "critical mass" of minority students undermined the requirement that there be "individual review" of applicants' qualifications. Critical mass, Kennedy argued, led to an illegal quota system for admitting minorities.

The Fisher case is different, Brown said, because the University of Texas has not tried to reach a critical mass of minority students outside of the state's plan that automatically admits applicants who are Texas residents and place in the top 10 percent of their high school class.

"If Justice Kennedy continues to follow his reasoning in Grutter, he might uphold the use of race as a decision factor at the University of Texas," Brown said.

But here's the rub. The result of Kennedy's reasoning is that race can count in admissions decisions; it just can't count as much. Ironically, that could leave minority applicants much worse off than now.

"If admissions officials at selective higher education programs are told that race cannot count for as much in the future as it does now," Brown said, "the only way that admissions officials can operationalize this requirement is to substantially reduce the percentage of underrepresented minorities that they admit."

Brown is the Richard S. Melvin Professor of Law at the IU Maurer School of Law. He is available to discuss Fisher and other affirmative action cases at For assistance, call Ken Turchi at 812-856-4044 or Steve Hinnefeld at 812-856-3488. Top

Decision would affect K-12 schools, not just higher education

If the court overturns or limits its Grutter v. Bollinger decision, universities throughout the U.S. will need to adjust their admissions policies, and the number of minority students at some universities will likely decrease, says Suzanne Eckes, associate professor in educational leadership and policy studies at the IU School of Education. And there will be implications for public elementary and secondary schools as well.

Eckes said the court is likely to first re-examine whether maintaining a diverse student body is a "compelling governmental interest," and then whether the Texas admissions policy was "narrowly tailored" to meet that goal. While the focus is on higher education, Eckes notes that the court used the same standard in 2007 when it ruled that K-12 desegregation plans in Louisville, Ky., and Seattle were unconstitutional. At that time, four justices wanted to outlaw any consideration of race.

"Fisher will certainly have an impact on K-12 education, especially if the court no longer finds diversity to be a compelling state interest in education," Eckes said.

In an article written with IU's David Nguyen and Jessica Ulm, Eckes argues the court should draw on social-science research on the value of diversity in education. They say that, in cases from Brown v. Board of Education in 1954 to recent decisions on gay rights and other topics, incorporating research findings has made for better law and increased understanding of important topics.

"We urge the court to incorporate social science into its decision of the Fisher case not only to better understand the value of a diverse education system, but also to better educate the public about the societal and educational benefits of diversity," they write.

Eckes can be reached at 812-856-8376 or Top

Two factors critical in high-impact session

With affirmative action, gay marriage and other hot-button issues coming before the Supreme Court, the 2012 term promises a number of critical decisions for the country, says David Orentlicher, the Samuel R. Rosen Professor of Law of the IU Robert McKinney School of Law in Indianapolis.

"Two factors will be important in deciding the court's direction," Orentlicher said. "First, some of the cases will revisit past decisions by the court in which Justice Sandra Day O'Connor provided the pivotal vote. Her successor, Justice Samuel Alito, is likely to provide the pivotal vote for the other side now.

"Second, the court typically tries to remain in sync with societal sentiments. As public support has declined for affirmative action and increased for same-sex marriage, we may see the court reflect these evolutions in social view in their decisions."

Orentlicher's article "Affirmative Action and Texas' Ten Percent Solution: Improving Diversity and Quality" is available from the Social Science Research Network. He can be reached at 317-658-1674 or Top