In 1978, in Regents of the University of California v. Bakke, the Supreme Court ruled that race could be considered as one factor in making college admissions decisions even though they could not set quotas. This most recent affirmative action decision is another win for tribes.

SCOTUS Hands Tribes One More Win, Upholds Race-Conscious College Admissions

Tanya H. Lee

In a surprising move, the Supreme Court ruled on June 23 that University of Texas at Austin’s use of race as one factor in admissions decisions was allowable to help the university create a diverse student body. The decision puts another case in the win column for tribes this term, along with the court’s June 27 decision in Voisine v. U.S., its June 23 ruling in Dollar General v. Mississippi Band of Choctaw Indians, its June 13 decision in U.S. v. Bryant and its March 22 ruling in Nebraska v. Parker.

Navajo Nation Council Delegate Nathanial Brown (Chilchinbeto, Dennehotso, Kayenta) said in a statement, “Particularly in higher education, affirmative action policies help minorities.”

National Indian Education Association President Patricia Whitefoot stated, “Race is a clear and present reality for our students…. The ruling of the court is one step in the journey to heal the wounds caused by the forced assimilation. Education, which was used as a weapon of war, can now be used to propel students forward.”

Affirmative action (or race-conscious) policies in college admissions are one means of remedying prior discrimination against minority groups and of creating diverse student bodies. At a June 28 briefing by a panel of civil rights and education experts organized by the American Educational Research Association and hosted by the National Press Club, Gary Orfield said that with this and previous Supreme Court rulings, the idea that all students benefit from diverse colleges “has now been made into a fundamental finding of Constitutional law.” Orfield is a professor of education, law, political science and urban planning at the University of California, Los Angeles.

Creating a diverse student body, noted the panel, is a prerogative of the college or university, not a right of individual students.

Affirmative action in higher education has been repeatedly challenged. In 1978, the Supreme Court ruled that race could be considered as one factor in making college admissions decisions even though they could not set quotas (Regents of the University of California v. Bakke). Then in 1996, the court reversed that ruling on the grounds that a university’s interest in a diverse student body was not of paramount importance (Hopwood v. Texas).

Eight states, including some with large American Indian/Alaska Native populations, such as California, Arizona and Oklahoma, subsequently banned affirmative action at all public universities, which in California resulted in a “precipitous drop in the number of American Indian students,” said Orfield.

In 2003, the Supreme Court ruled that a university could not use a point system to include race in admissions decisions (Gratz v. Bollinger), but the same year it affirmed its position that using race as an admissions criterion was legal (Grutter v. Bollinger).

The case the court just decided was initiated in 2008 by a white student who was denied admission to UT Austin and who argued that considering race in the admission process violated her civil rights. Among the organizations filing amicus briefs in the case were the National Native American Bar Association and Native American Law Students Association at the University of California, Hastings.

That case (Fisher 1) was remanded back to the lower court for more work. In October the Supreme Court agreed to hear the case, Fisher v. University of Texas at Austin, (Fisher 2) again. Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor rejected Fisher’s arguments and the court reaffirmed its Grutter decision by a vote of 4-3.

ICTMN asked the AERA panel what impact Fisher 2 was likely to have on American Indian and Alaska Native students. The answer: It’s hard to know. “American Indians have been largely neglected because of the relatively small share of the population and that’s shameful,” said Orfield.

“We need to work with tribal groups and others in thinking through how to do this and thinking through the fact that these students are not only disadvantaged but isolated. How can we support them even though their numbers are relatively small, and connect them with their communities? That’s part of the challenge of moving from the desegregation to the integration process. Native Americans should not be left out in that process,” Orfield continued.

Affirmative action in admissions is only one way that colleges can try to ensure diversity, said the AERA panel. Others include differential scholarship aid, ensuring that a sufficient number of students of a particular race were admitted so individuals do not feel isolated, creating links to communities of origin, providing the academic and social support students needed to stay and graduate and hiring a diverse faculty. “The richness of diversity is not just interactions among students,” said Orfield, “but it’s the richly diverse perspectives from African American, Latino, American Indian faculty doing intellectual work in many fields.”

“The classroom can be the most important vehicle for social integration and global competitiveness that we have. So it’s important what is presented in the classroom [and] whose histories are validated,” said Stella Flores, associate professor of higher education at New York University.

Stella M. Flores, Associate Professor of Higher Education at New York University, and Director of Access and Equity at the Steinhardt Institute for Higher Education Policy at NYU, speaks at a briefing about the Supreme Court’s June 23 affirmative action ruling. (Courtesy American Educational Research Association)

The surprise in this Supreme Court decision was Justice Kennedy, who was not expected to back affirmative action. His was the vote that decided the case and one of the reasons his vote was so crucial is that the Supreme Court is down one justice following the death of Antonin Scalia in February.

The Senate has refused to hold hearings on President Obama’s nominee to fill that spot, so the ninth justice, and as many as three others (that’s how many of the current justices are in their late 70s and early 80s) may be appointed by whomever wins the presidency in 2016. What happens next in affirmative action (in cases brought against the University of North Carolina Chapel Hill and Harvard University) will depend on the “changes that are coming to the court,” said AERA panelist Theodore Shaw, professor of law at the University of North Carolina School of Law and director of the UNC Center for Civil Rights.

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