As provost of the University of Michigan in 2003, Nancy Cantor worked tirelessly to help prepare the university for a landmark affirmative action case that went all the way to the Supreme Court.

On Tuesday, the court decided to hear another case challenging affirmative action policies in college admissions, this time against the University of Texas. Depending on how broadly the court rules on the case, it could overturn the 2003 decision, which ruled that public colleges and universities could use race as a factor when determining admissions. The ideological makeup of the court has changed since 2003 to a more conservative body.

In 2003, the court heard two cases involving the University of Michigan: Grutter v. Bollinger and Gratz v. Bollinger. The court ruled the policy used by undergraduate admissions that admitted students based on a strict point system largely considering race was unconstitutional, but that universities could take race into account in narrowly defined ways that justify a compelling state interest.

Cantor was instrumental in preparing Michigan for the cases, working with then-president Lee Bollinger to gather data that showed the compelling state interest for affirmative action. Cantor’s social science background was crucial, as the two used a number of university and national studies to prove their point.

‘We really argued the compelling state interest in terms of the educational benefits of diversity on a college campus for everyone,’ Cantor said.

Both the 2003 cases and the case against the University of Texas are brought on grounds that affirmative action policies violate the equal protection clause in the 14th Amendment. The UT case is significant because in addition to asking the court to rule the university’s policies unconstitutional, the student and her lawyers have also asked the court to completely overturn Grutter, said Brian Fitzpatrick, an associate professor of law at Vanderbilt University Law School.

If the court does rule on the broader point, ‘no public or private university in America will be able to use affirmative action. And that’s why this case is so significant,’ Fitzpatrick said.

UT allows any Texas student who graduates in the top 10 percent of their high school class automatic admission to the state university. This policy was adopted as a race-neutral alternative that would ensure diversity among the student body. High schools in Texas are still fairly segregated, so this plan produces significant diversity at UT, Fitzpatrick said.

But in addition to the 10 percent plan, the university also considered race as a factor when making the rest of its admissions decisions. Abigail Fisher, a white female who was not in the top 10 percent of her class, claims she was denied admission based on her race.

‘She’s saying the use of race as a factor is unconstitutional because there is a race-neutral alternative,’ Fitzpatrick said.

Thomas Keck, chair of the political science department at Syracuse University, said he thinks UT will lose the case, but it is unlikely the court will overturn Grutter. Although five justices now lean more conservatively, the Supreme Court generally makes decisions more narrowly and one case at a time, he said.

‘I think UT is very likely to lose this case and their existing policy to get struck down,’ Keck said. ‘But it is likely the court will do that with the specific circumstances that apply to UT, and it is less likely that the court will go out on a limb and overturn Grutter.’

If the court did overturn Grutter, he said, the implications would be significant.

Cantor said she was initially surprised the Supreme Court decided to hear the UT case, given the Grutter ruling is so recent. It is important to remember that the Grutter decision did not say race should allow universities to accept people who aren’t qualified, she said.

‘You want a rich mix of people who come from different geographies, who come with different life experiences, who bring different talents and different interests,’ Cantor said. ‘That’s what underlies the notion of race as a plus factor, one among many plus factors.’

SU, like many institutions, includes race in a qualitative review of applicants as the Grutter decision allowed for, she said. If the Supreme Court does take a wider view and overturns Grutter, the effects on higher education would be negative, she said.

Said Cantor: ‘There can be nothing more important for educating a global diverse world than for allowing universities to make qualitative reviews that really play to the strengths of a diverse talent pool.’

[email protected]

 

Published on February 26, 2012 at 12:00 pm