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Will the Supreme Court Rule the Common Application Unconstitutional?

Posted by on July 15, 2012 in Upcoming Cases of Interest - Comments Off on Will the Supreme Court Rule the Common Application Unconstitutional?

This fall, the Supreme Court will decide if race is a valid question on college applications.

It is unfair to write about affirmative action and an upcoming Supreme Court case that could dramatically change the college admission process without first stating my own potential biases.  I am white.  I am female. I am 15 years old.

Well, technically, I will be sixteen by the time the Supreme Court hears oral arguments in Fisher v University of Texas.  When the court announces its decision next spring, my own college search process will have begun.  While recently the press has focused largely upon last month’s decision upholding President Obama’s Affordable Care Act, the Supreme Court’s docket for next term will surely address equally controversial subjects.  For teenagers, the Court’s opinion on affirmative action could have immediate effects.

President Kennedy first introduced the term “affirmative action” to combat racial prejudice that persisted despite civil rights laws.  President Johnson wanted to equal the playing field for all stating, “We seek… not just equality as a right and a theory, but equality as a fact and as a result.”  Affirmative action, though, was seen by many to be a temporary policy that would be withdrawn after its goals were achieved.

Difficulties with the policy date back to the 1970’s.  In Regents of the University of California v Bakke, a white applicant to medical school argued that he was harmed by reverse discrimination and that less qualified African American candidates were accepted over him.  Bakke won and was admitted.  The Court banned strict quotas within an admission process, but they did allow universities to consider race in order to achieve a diverse student body.

Anger has grown over this policy, particularly among conservatives.  Many see affirmative action merely as preferential treatment.  Others feel that some minorities are benefiting by affirmative action, while different minorities are not eligible.  However, liberals see the need for affirmative action and recognize that a few hundred years of slavery and legalized discrimination are not easily reversed in a few decades.  Still others worry that applicants are “gaming” the system, or conducting some type of “racial fraud.”  A Native American great-grandfather could be ‘used’ to achieve an advantage in college admission even though the applicant doesn’t identify in any way as a Native American.  Do minority candidates from economically privileged families deserve the benefits of affirmative action over white children who live in poverty?  Should children of mixed racial backgrounds be treated preferentially? The questions are complex and both sides raise valid concerns.

In 2003, Justice Sandra Day O’Connor wrote a landmark 5-4 decision upholding University of Michigan and its Law School’s policy of considering race as a factor in admission, while ruling that their point system was too rigid and needed to be changed.  She stressed that diversity is a compelling state interest of society.  Our future leaders should come from “qualified individuals of every race and ethnicity.”  The current Supreme Court though is more conservative today than it was in 2003 and Justice O’Connor no longer sits on the bench.  This fall, the Court has another opportunity to tackle race as a factor in school admission, but a broad ruling could affect many other aspects of our society, including job applications.  Abigail Fisher, a white student, applied to University of Texas in 2008.  The school has a policy of accepting all students who graduate in the top 10% of their high school graduating class.  For those who do not automatically qualify based on their high school rank, the school considers many factors, including grades, extracurricular activities, and race.  While the University of Texas has argued that its policies are consistent with those already upheld at the University of Michigan, and a Federal Appeals Court agreed, Ms. Fisher believes that less qualified minority applicants were accepted over her, and the Supreme Court has agreed to hear her case.  Of note, she was subsequently accepted to Louisiana State University (LSU) and recently graduated.

 Greg Walton, a Stanford University assistant professor of psychology, and Steven J. Spencer, of the University of Waterloo, believe that schools and employers need to take race into account in order to obtain the best qualified applicants.  In their paper soon to be published in Social Issues and Policy Review, co-authored with Sam Erman of Harvard University, they conclude that SAT tests and GPA underestimate the intelligence of ethnic minorities.  Therefore, without knowledge of an applicant’s race, a school or employer may actually be discriminating against minorities.  Walton and Spencer will present their report to the Supreme Court during this fall’s case.

Are there any hints as to how the Court will act?  The current Court has suggested that it may view race-based admissions harshly.  Justices Scalia, Thomas, and Kennedy voted to strike down University of Michigan’s plan in 2003.  Justices Roberts and Alito were not serving on the Court at that time.  But, in 2007, Chief Justice Roberts referred to Brown v Board of Education in a case called Parents Involved in Community Schools v Seattle School District No. 1 stating “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”  With five votes, a dramatic change to the college application process may be approaching.  If affirmative action as we know it is struck down, what others measures will colleges take to increase campus diversity?

About a year from now, I will sit at my computer to complete the Common Application for college admission, just like more than 2 million other teenagers will do.  I will be asked for my SAT scores, GPA, and details of extracurricular activities.  Will I also be asked if I am Hispanic, American Indian, Alaskan Native, Asian, African American, Caribbean, Native Hawaiian, or White?  The Supreme Court will decide.

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