Leading 14-State Coalition, A.G. Schneiderman Urges U.S. Supreme Court To Reaffirm That Universities May Consider Race As One Factor Among Many In Admissions Policies

A.G. Schneiderman: States Have A Compelling Interest In Establishing Diverse Student Bodies At Their Institutions Of Higher Learning

WASHINGTON - Leading a bipartisan coalition of 14 states, the District of Columbia and the U.S. Virgin Islands, New York Attorney General Eric T. Schneiderman filed a friend-of-the-court brief urging the U.S. Supreme Court to uphold the undergraduate admissions system of the University of Texas at Austin (UT), which considers applicants’ race and ethnicity among many other factors as part of individualized admissions decisions. Under Texas’ “Top Ten Percent Law,” all students graduating in the top ten percent of their Texas high school classes are automatically admitted, and in recent years, this has filled about 70 percent of the entering class. UT fills the balance of the class using individualized admissions, with race and ethnicity considered as a factor.

“For years, public universities have been permitted, under multiple landmark Supreme Court decisions, to take applicants’ race and ethnicity into account as one of many factors in individualized, holistic admissions decisions,” said Attorney General Schneiderman. “To protect the academic freedom of public institutions of higher learning and to allow them to achieve the full educational benefits of diversity, the Court should stand its ground against efforts to roll back these precedents.”

The Schneiderman-led coalition argues that the states have a compelling interest in achieving the educational benefits of diversity, and that the Constitution permits them to consider race as one factor among many in developing admissions policies that foster a diverse academic community and that are tailored to the unique conditions and needs of each state's particular institutions of higher learning.

The coalition also urges the Supreme Court to reject the petitioner’s argument that UT’s compelling interest in promoting the educational benefits of diversity is fully exhausted by the Top Ten Percent Law, which, while race-neutral on its face, is motivated by the aim to increase diversity. Although automatic admission of applicants with high class rank may sometimes help to achieve the educational benefits of diversity, it may not always be effective, and it may have significant other drawbacks and limitations, depending on a public university’s size, applicant pool, and other factors. Consequently, public institutions should not be forced to use a mechanical admissions policy based on high school class rank alone, and, if they do decide to employ such a policy, institutions should not be precluded from complementing the policy with a holistic, individualized approach that takes race and ethnicity into consideration, along with numerous other factors.

Automatic, class rank-based admissions policies will typically promote racial and ethnic diversity only if the state's high schools are substantially segregated by race, and if racial and ethnic minorities with high class rank decide to accept the places offered to them at a particular public university or college, according to the brief. Moreover, such automatic admissions have significant drawbacks even if they achieve some level of diversity: they limit the constitutionally-protected academic freedom of universities to select students for admission based on individualized consideration of applicants.

The brief argues that such mechanical plans thus force universities to admit some less-qualified applicants based on class rank alone and prevent universities from considering the distribution of minority applicants across various programs of study. If a public university uses such an automatic admissions policy to fill part of its enrollment, it should be accorded the flexibility to fill the balance of its class with an individualized admissions process that takes race into account, as UT has done. The states argue that universities — not courts — should be able to calibrate the extent to which they use each type of admissions plan to achieve the benefits of diversity while also maintaining academic selectivity.

The Schneiderman-led coalition argues that because percentage plans like the Texas Top Ten Percent law have drawbacks and disadvantages, public universities and colleges might appropriately reject such plans or decide to complement them with individualized admissions that consider race as a non-determinative “plus” factor.
“To successfully fulfill their long-standing role in providing public higher education, States must have the freedom and flexibility to create strong institutions tailored to the needs of each particular State and its citizens. In striving to meet these objectives, the amici States have learned, through decades of experience, that the existence of a diverse educational community enriches the learning environment for all students and better prepares them to excel in a heterogeneous world,” the brief stated.

States joining New York on the brief are Connecticut, Hawaii, Illinois, Iowa, Maryland, Massachusetts, Mississippi, Montana, New Mexico, North Carolina, Vermont, Washington, West Virginia, as well as the District of Columbia and the U.S. Virgin Islands.

The brief was prepared by New York Solicitor General Barbara D. Underwood, Deputy Solicitor General Richard P. Dearing, and Assistant Solicitor General Simon Heller.
A copy of the brief in Fisher v. University of Texas at Austin is available online at: http://www.ag.ny.gov/sites/SCOTUS_Brief_Fisher_v_University_of_Texas.pdf.

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