LINCOLN — Higher education officials in Nebraska and Iowa, like their counterparts across the nation, will have to wait for a final decision on the fate of affirmative action in the college admissions process.
On Monday, the U.S. Supreme Court returned to the lower courts a case challenging the University of Texas’ use of race as a factor in some admissions decisions.
In a 7-1 ruling, Justice Anthony Kennedy wrote that the lower court gave the university too much deference in its ruling. The university should be required to show that there are no available workable race-neutral alternatives to its policy, he wrote.
“I think universities with affirmative action plans around the country are breathing a bit of a sigh of relief,” said Eric Berger, a constitutional law professor at the University of Nebraska College of Law. “Affirmative action has been punted back to the lower courts and it’s still in play.”
He cautioned, however, that the decision may afford only limited breathing room. The strict level of scrutiny set out in Monday’s ruling will make it tougher for public universities to defend affirmative action programs.
It’s not merely a matter of showing that diversity serves a legitimate educational purpose.
The schools will also need to demonstrate why considering applicants’ race is their only option.
Tim Hagle, a political science professor who teaches judicial politics and undergraduate constitutional law at the University of Iowa, agreed.
“Any schools that have started using more race-conscious admissions programs should take a hard look at their program and come up with the evidence they’ll need if they’re challenged on it,” he said.
The Texas lawsuit was filed by Abigail Fisher, a white woman who was denied admission to the University of Texas at Austin in 2008.
The New Orleans-based 5th U.S. Circuit Court of Appeals had upheld the Texas admission plan, but Kennedy said the appeals court did not test the Texas plan under the most exacting level of judicial review.
Though Nebraska and Iowa were among the hundreds of organizations and individuals nationwide who signed “friend of the court” briefs supporting the University of Texas’ position in the case, higher education officials in both states said the ultimate decision will probably have little direct impact on how students are chosen for admission to public universities in the Midlands.
“It won’t impact us immediately, but there are always residual effects,” said Georgina Dodge, chief diversity office and associate vice president at the University of Iowa.
Officials at the University of Nebraska-Lincoln and the University of Iowa said their admissions policies are quite different from those used in Texas.
Neither Nebraska nor Iowa includes race as a factor in admitting students to its public universities. In Nebraska, the practice is barred by a 2008 constitutional amendment prohibiting preferential treatment or discrimination based upon race. Still, universities in both states heavily recruit among ethnic minorities, low-income families and students who would be the first in their families to attend college. For universities looking to expand enrollment, those are among the few growing demographic segments in the region.
Both UNL and the U of I have open admissions policies that admit any student who meets academic qualifications.
UNL, for example, admits students who have completed 16 required high school courses, who rank in the upper half of their high school class or who have received an ACT composite score of 20 or higher or an SAT total score of 950 or higher. Individual colleges within UNL have higher requirements.
UNL Chancellor Harvey Perlman and Law School Dean Susan Poser said that if the Supreme Court were to abolish affirmative action, it could serve to “level the playing field” by requiring other universities to recruit minority students under the same restrictions that exist in Nebraska.
“Everyone would have to play by the same rules,” Poser said. “Whether that is a good thing for education in general, and for our country, is a different question.”
Under state law enacted in 1998, Texas students who graduate in the top 10 percent of their class are required to be admitted. By 2008, that amounted to 70 percent of the entering class. Race was used as a factor in the admission decisions for the remaining 30 percent. Fisher, who did not graduate in the top 10 percent of her high school class, was not among the students who were admitted.
The University of Texas adopted that system after the 2003 U.S. Supreme Court decision in Grutter v. Bollinger. That ruling allowed universities to adopt policies allowing them to pursue a “critical mass” of minority students in their college classes.
This report includes material from the Associated Press.
The Associated Press takes a look at important cases before the Supreme Court, including today's ruling on affirmative action