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U.S. newly defends race as college plus factor

The Obama administration on Friday began a new effort to shape how lower courts apply the Supreme Court’s new limits on the use of race in public college admission decisions.  Government lawyers filed a brief in an appeals court urging judges to give academic officials a wide opportunity to show that they must make some use of race to achieve racially diverse student life that would have educational value.  Courts should limit how much they “second-guess” academic judgment, the brief argued.

The brief provided strong new backing for the admissions policy now used at the flagship Austin campus of the University of Texas — the same plan that the Supreme Court reviewed last Term, without settling its constitutionality, in the case of Fisher v. University of Texas.  The case has returned to the Fifth Circuit, for a ruling on whether the program is constitutional.   The Fifth Circuit is currently pondering whether to make this follow-up ruling itself, or to first send the case back to a trial judge for some added factual exploration.

The woman involved in the case, Abigail Noel Fisher of Sugar Land, Texas, who claimed she was denied admission because she is white, wants the court of appeals to decide the case itself, and quickly, and her lawyers have urged the Fifth Circuit to use a very rigorous analysis to judge the policy.   The university has asked the court of appeals to return the case to the district court so that further information can be offered to support the program’s legality.   The Justice Department has been in the case on the university’s side, and remains allied with it.  Both the university and the government contend that the program passes the Supreme Court’s test.

In the Fisher decision, the Supreme Court for the first time set up a two-step analysis of a college admissions program that makes some use of race in selecting the incoming first-year class.  In the first step, a court may give the benefit of the doubt to the university’s “good faith” claim that it seeks to use its admissions processes to achieve educational benefit from racial diversity on the campus.  Technically, in that step, the university’s academic judgment is entitled to considerable deference.

In the second step, when it gets no deference, the university must first show that it has tried without success to achieve its racial diversity goal by using methods that make no use, at all, of race.  If it can convince the court of that, then the university — again, without deference from the court — must prove that the program that would use race as a factor is constitutional.   In other words, it has to convince the court that it could not achieve diversity without using race, and that the racial factor was used in as limited a way as possible.

As the Fifth Circuit considered how that test would be applied to the Texas program, it asked the lawyers involved in September to file written answers to a series of questions.  Fisher’s lawyers filed her brief answering all of the questions on October 4, and the university followed with its responses on October 25.

The Justice Department, in its brief on Friday, chose to limit the questions to which it was offering answers.  It split into two and changed the wording of a single question that the Fifth Circuit had asked.

The court questioned whether the university was “due any deference” for having decided in 2004 that it had not yet achieved racial diversity, and so had to try harder.  That was not a specific question that the Supreme Court had raised when it constructed the two-step analysis, but the Fifth Circuit clearly perceived that its inquiry was part of the second-step analysis, of whether the university was justified in adopting any new racial component for admissions.

The first question the Justice Department posed was a slight variation of the court’s question, as to whether the university was “due any deference” for deciding that it was still short of its diversity goal.  The second question was a proof question: has the university shown that it actually had not reached its goal?

The Justice Department’s brief said the two questions, in the form it outlined them, would yield an answer as to how the court “should review the university’s conclusion” that it was short of its diversity goal.   The brief first suggested that the court should not just look at the numbers of minority students on the Austin campus at the time — that is, the approach that Fisher’s lawyers have recommended.  Rather, the government brief said, the court must make “a qualitative assessment of the educational experience of the university.”

The court, using its own independent judgment, should review the arguments and evidence that the university submitted on the point, the U.S. brief argued.  As this review process was further spelled out, it apparently would be an inquiry into whether the university had offered “concrete evidence” of whether there was cross-racial communication and whether minority students were isolated.  But, since the university’s evidence and the conclusions the university sought to draw from it would arise out of “educational expertise and judgments about the university’s institutional mission,” the court should judge the program “with due regard for the multi-faceted educational assessments” being made by the university, the Department suggested.

The emphasis throughout the brief’s discussion of the recommended approach was on the university’s special understanding of what it was seeking to do educationally and, while it did not recommend easy acceptance of the university’s “good faith” in defending its decisions, it was clear that the government was at least implying that  educational philosophy could be trusted, at least to a significant degree, to provide the court with the material it needed for making its ultimate independent judgment.

Having spelled out the review process that the government thought should be deployed, the government brief then went on to assess the evidence that the university so far had produced and concluded that it had made its case, that it was justified in concluding that, still being short of its diversity goal, it had no choice but to craft an admissions plan that would continue to make use of race.

The conclusion, the brief suggested, was that “the university has provided ample support for its conclusion that it had not yet achieved the educational benefits of diversity to an extent that would be consonant with its educational mission.”

Recommended Citation: Lyle Denniston, U.S. newly defends race as college plus factor, SCOTUSblog (Nov. 2, 2013, 11:08 PM),