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Supreme Court Justices Challenge Affirmative Action at Universities

"I'm just not impressed by the fact that — that the University of Texas may have fewer [Black students]. Maybe it ought to have fewer," Justice Antonin Scalia said.

Justice Antonin Scalia

Just as the racially charged protests at colleges and universities across the country gradually died down, affirmative action in higher education is now taking center stage as a heated discussion takes place in the Supreme Court — where one justice has already questioned if Black students even have a place in competitive schools.


In 2008, Abigail Fisher alleged that the University of Texas-Austin rejected her application in favor of enrolling more minority students — even though they had lower grades than she. Now her case is back in the courts, and the university's admissions process is on the line.

Justice Antonin Scalia did not hold back his disdain for the school's current use of affirmative action and said that Black students won't do well at the university regardless.

"There are those who contend that it does not benefit African Americans to — to get them into the University of Texas where they do not do well, as opposed to having them go to a less-advanced school, a less — a slower track school where they do well," he said.

Chief Justice John Roberts questioned what minority students have to offer at the university level.

"What unique perspective does a minority student bring to a physics class?" he asked.

Currently, 75 percent of the university's student body is comprised of qualifying students in the top 10 percent of their classes. The remaining 25 percent of students are chosen following what is called a "holistic review," which considers grades, essays, leadership skills, awards, extracurricular activities, socioeconomic background and race and ethnicity.

"I'm just not impressed by the fact that … the University of Texas may have fewer [Black students]. Maybe it ought to have fewer. I don't think it … stands to reason that it's a good thing for the University of Texas to admit as many Blacks as possible," Justice Scalia said.

To admit even fewer Blacks than the university already does would almost completely eliminate Black students from the campus. According to its College Scorecard, the University of Texas-Austin's student body is 48 percent white; 22 percent Hispanic; 18 percent Asian; 5 percent non-resident alien; 4 percent Black; 3 percent two or more races; and less than one percent unknown, American Indian/Alaska Native and Native Hawaiian/Pacific Islander. Only 27 percent of students receive a need-based federal Pell Grant.

This is not the first time the issue has made it to the Supreme Court. In 1978, in Regents of the University of California v. Bakke, the Court determined that while universities could not maintain racial quotas for admissions, they were free to consider race as a factor in the application process. In 2003, in Grutter v. Bollinger, the Court reached the same conclusion. This time, the Court said that in 25 years, schools should no longer need affirmative action to achieve a diverse student body.

Affirmative Action: 'Diversity is not just race'

Courtney McAnuff, vice president of enrollment management at Rutgers University, sat with DiversityInc to provide his insight regarding affirmative action and diversity in schools.

McAnuff believes the university's current approach has been successful with "making sure that the class has got the desired mix they want" and explained why it's so important to keep classrooms diverse — in every sense of the word.

"Diversity is not just race," he said. "It's suburban, urban, rural, international, economical. As you strive to build a class, you really want to build a group that's really representative of what the university is, what the state is, to build a class that will make learning better."

When most people hear "affirmative action," they think of race and ethnicity.

"At Rutgers, that's not what we do," McAnuff explained. "We use social economic as our main driver. So we strive for the undergraduate school to have at least ten percent of these students be low income. So while race is not a predominant factor in our holistic review, we generally end up with a very diverse class."

McAnuff also said that being in an environment with students from a variety of backgrounds — and not just in regards to race — better prepares them for life after graduation, when they will be working and interacting with all different people.

"I think our graduates are far better prepared to enter the workforce, being able to work with different people, being able to understand different lines of thinking," he said. "I think that's one of the big values of being in a very diverse campus.

"It opens your mind," he said, "because your way is not the only way of thinking something."

In response to Justice Scalia's comment, McAnuff said that he has seen the opposite take place during his time at Rutgers.

"He thinks that schools overmatch the students and they're actually doing the students a disservice," he said. "I feel that's a very spurious argument, and that what typically happens is the more academically competitive the university is, the better every student will do because the tide rises for everybody."

Rutgers sets the bar very high, McAnuff said, and does not lower admissions requirements for anyone. "We set a very high admissions criteria, and many students work up to that level. That's what we expect," he explained.

With four justices who seem they will vote against affirmative action, three who may rule in the university's favor and one swing vote (in the event of a tie vote the ruling would favor the university), McAnuff said he's not sure how the vote will play out.

"I hope they rule in the university's favor," he said, "but I think it's going to be difficult."

History of Affirmative Action at University of Texas

The University of Texas was segregated until 1950, when the school admitted the grandson of a slave. Eventually, like other schools, the university implemented an affirmative action plan.

This plan was challenged in 1992 in Hopwood v. State of Texas, when four white students sued the state after being rejected from the university's law school, alleging that they had higher grades and better credentials than many minority students who had been admitted.

In 1994 a judge ruled that the school could continue using race as a factor in admissions. But this decision was challenged in 1996 when Circuit Judge Jerry Edwin Smith released his opinion, declaring that the school "may not use race as a factor in deciding which applicants to admit in order to achieve a diverse student body."

Between 1996 and 2003 (the year of the Grutter v. Bollinger ruling), diversity dropped sharply at the University of Texas. But after the 2003 ruling, the university implemented its current process of accepting the top 10 percent first and then using the other factors to top off the class.

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