Schools Brace for Decision on Affirmative Action

Ann McClure's picture

As the Supreme Court heard arguments on Wednesday in a case challenging race-conscious admission to public colleges, university officials across the country watched for clues to where the court might go while contemplating what steps schools might take if the court changed the state of the law.

Administrators who paid close attention — following the arguments on blogs or reading the transcript — looked most carefully at the words of Justice Anthony M. Kennedy, widely seen as the swing vote on the case. But in asking tough, skeptical questions of both sides, Justice Kennedy left them no clear indication which way he will go.

Schools are bracing for three broad categories of possible outcomes in the case, Fisher v. University of Texas: a complete and history-making ban on race-conscious admissions, a tightening of the current limitations on consideration of race or ethnicity, or a decision that more or less leaves things as they are. The result will turn largely on the court’s reading of its 2003 decision in Grutter v. Bollinger, when the justices, by 5 to 4, ruled that schools may take race into account as one factor among many, as long as they do not use numerical quotas. A decision will be issued next year.

“An outcome a lot of us in higher education are contemplating is that they could affirm Grutter, at least in name, but impose a stricter definition of what it allows,” said John C. Boger, dean of the law school at the University of North Carolina at Chapel Hill, and an author of a brief that school submitted to the court in support of the University of Texas.

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