Will Black Lives Matter for Justices?

      Racial tensions had been increasing on the University of Missouri’s campus for weeks as black students complained of what they regarded as the administration’s failure to deal with a rash of anti-black incidents. But it took a threatened strike by Mizzou’s football team last month to force university president Timothy Wolfe to resign.
      African Americans comprise about 7 percent of the campus’s 35,000 students, but those numbers were not enough to prompt a response until the predominantly African American gridiron squad massed in biracial solidarity. “If you look at black undergraduate men, they could do very little in defense of themselves, given their small numbers,” Shaun R. Harper, director of the Center for the Study of Race and Equity in Education at the University of Pennsylvania, told the Washington Post. “Given the large number of black men on the football team there, they can do something and they did something.”
      The Supreme Court returns to the issue of race-conscious university admissions this week [Dec. 9] against the backdrop of a flurry of racial protests at campuses all across the country. Traditional civil rights groups say the events underscore the reality that African American and Latino students continue to feel isolated on predominantly white campuses even as their numbers increase somewhat. “No one can dispute that race still matters on campuses around the country,” says Marisa Bona, regional counsel for the Mexican American Legal Defense and Educational Fund (MALDEF).
      Yet there is also some fear on that side of the case that the justices may react negatively to campus debates that dig up old historical wounds and at times seem to threaten academic freedom. “The justices may think some of this is overblown,” says Sherrilynn Ifill, president of the NAACP Legal Defense and Educational Fund. But Ifill says the court should view the debates as healthy. “That’s what universities are designed to do,” she says.
      The justices take up the issue in a second look at what proponents says is the limited use of race in admissions at the University of Texas’s flagship Austin campus.  In the court’s first ruling, Fisher v. University of Texas (2013), the court voted 7-1 to require the Fifth U.S. Circuit Court of Appeals to reconsider its decision upholding the university’s admissions policies. In an opinion by Justice Anthony M. Kennedy, the court held that the constitutional standard of strict scrutiny requires federal courts to closely examine how admissions policies operate in practice. The appeals court had gone wrong, Kennedy said, by deferring too much to the school’s description of the process.
     The appeals court upheld the admissions policies a second time. The court’s conservative bloc may now feel the need to be more direct in narrowing any role for race in college and university admissions. The lawyers challenging the policies on behalf of Abigail Fisher, an unsuccessful white applicant for the entering class of 2008, insist that that the use of race “must be a last resort — not the rule.” Some of the conservative groups on their side go further and want to bar any consideration of race whatsoever, a position long advocated by conservative justices Antonin Scalia and Clarence Thomas.
      The Austin campus reflects the rapid growth of Texas’s Latino population; Hispanics comprise nearly 20 percent of the student body, but African Americans only 4.4 percent — down slightly from a year ago. Those numbers are as large as they are in part because of the so-called Top Ten Percent law adopted in the late 1990s, which guarantees admission to the top 10 percent of the graduating class of any public high school in the state.
      That law increases minority admissions simply because most schools in Texas are identifiable as predominantly white, black, or brown. UT says its limited use of race helps ensure “intra-racial diversity” by allowing admission of minority students from predominantly white schools who fall below the 10 percent threshold in their class.
      Ifill endorses that goal because it presents a more complete picture of demographic diversity to all UT students. “I want them to know that not all African American students come from the Third Ward in Houston,” she says. “I want them to know that there are Latino students who don’t speak Spanish.”
      The number of minority students admitted through the race-conscious procedures is relatively small, but UT’s lawyers contend the policies help ensure a “critical mass” of minority students not just overall but in specific departments and programs. At the first round of arguments, Chief Justice John G. Roberts Jr. pressed UT’s lawyer on his inability to precisely define “critical mass.” In an online commentary this round, Richard Sander, a UCLA law professor critical of racial preferences, says universities seeking to use race-conscious admissions should be required to show just how far they have to go to meet the “critical mass” goal.
      The Missouri experience indicates that “critical mass” is an inevitably elusive concept. A decision imposing an unrealistic burden on schools to defend race-conscious admissions could have a dramatic impact on minority enrollments in states with nothing comparable to Texas’s Top Ten Percent law.
      Kennedy has never voted to uphold race-based admissions. But Ifill sees his critical vote last term in upholding use of the Fair Housing Act to break down residential segregation as recognizing “some role” for race consciousness in government policies. All eyes will be on Kennedy during the arguments on Wednesday as he is likely to hold the pivotal vote in this case too.