October 9, 2012

Maine colleges await Supreme Court's affirmative action ruling

The U.S. Supreme Court will hear the case Wednesday, and it could prohibit any school from ever using race or ethnicity in admissions decisions.

By Susan McMillan smcmillan@centralmaine.com
Staff Writer

In between sessions about federal financial aid and recruitment of international students, the Supreme Court was on the minds of college admissions officers at a national conference last week.

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The U.S. Supreme Court will hear a case Wednesday that could change Maine colleges' admissions decisions.


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Leigh Weisenburger, dean of admission and financial aid at Bates College, said people at the conference of the National Association of College Admissions Counselors in Denver talked a lot about the potential impact of an affirmative action case the court will hear Wednesday.

"It's a huge topic, a huge discussion point," Weisenburger said by phone from the conference. "We're anxious for Oct. 10."

The case stems from admissions policies at the University of Texas, but proponents of affirmative action are concerned that the Supreme Court will issue a broad ruling prohibiting any school from using race or ethnicity in admissions decisions.

"It is going to affect all of us, private and public," said Heather Lindkvist, who teaches anthropology at Bates. "This particular case can have repercussions about how we think about faculty and staff diversity and student diversity."

Maine public universities, including the University of Maine, the University of Maine at Farmington and the University of Southern Maine, do not consider race in admissions.

The case, Fisher v. University of Texas at Austin, has more significance for Bates, Bowdoin and Colby colleges, which all signed on to a brief supporting the University of Texas and the use of race-conscious admissions.

The brief was signed by 37 highly selective liberal arts colleges and universities that argue they cannot create sufficiently inclusive and vibrant environments through race-neutral admissions.

Case history

The Supreme Court last ruled on educational affirmative action in 2003. In Grutter v. Bollinger, it reaffirmed its decision from a 1978 case, California v. Bakke, that colleges and universities have a compelling interest to ensure a diverse student body because of benefits to educational quality and society at large.

Schools cannot use quotas or points, the court has ruled, but race can be one factor in admission decisions, which is how Bates, Bowdoin and Colby use it.

"We have a holistic approach to admissions, where we look carefully at all sorts of factors," Bowdoin spokesman Scott Horn said. "We seek to enroll a student body that is representative of America. That means admitting students of different races, (and) it also means different areas of the country and world, different socioeconomic backgrounds, different interests."

The University of Texas also uses a holistic process, including race or ethnicity to fill the small portion of seats remaining after granting automatic admission to all Texas students finishing in the top 10 percent of their high school class -- a policy that was instituted to promote diversity in a race-neutral way.

The petitioner in the Supreme Court case, a white woman named Abigail Fisher who was not admitted to UT, is asking the court to find the university's policy inconsistent with Grutter or to overturn Grutter entirely.

As with many cases, the decision in Fisher could hinge on Justice Anthony Kennedy, the court's most frequent swing vote. Kennedy voted against the majority in Grutter.

Dmitry Bam, an associate professor of constitutional law at the University of Maine School of Law, thinks the court will not rule so broadly as to ban affirmative action.

"Since the Bakke case, the court has said diversity is a compelling interest, and schools are allowed to consider it as part of a holistic analysis," Bam said. "I don't think Justice Kennedy is willing to scrap that altogether. There may be four votes to do that. I don't know if there are five."

UM School of Law Professor Melvyn Zarr said he also does not expect a broad ruling, but he noted that the Supreme Court has reached beyond the questions in some recent cases. He cited cases involving campaign financing and the Second Amendment as examples of activist rulings.

(Continued on page 2)

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