Judicial Notebook

The U.S. Supreme Court will soon hear arguments in a case asking whether the University of Texas at Austin (UT) has used race in its undergraduate admissions decisions in a manner that violates the Fourteenth Amendment's Equal Protection Clause (Fisher v. University of Texas at Austin, No. 11–345). The court's decision will likely affect other universities that use race-conscious admissions policies to promote diversity in its student body.

UT admits approximately 75 percent of its freshman pursuant to the state's "Top Ten Percent Rule," which requires the university to accept all Texas high school seniors who rank in the top 10 percent of their graduating classes. UT allocates the remaining spots to candidates in accordance with UT's own admissions policy. It considers such factors as standardized test scores and class rank and was made race-neutral in 1996 after a federal court determined that the University of Texas Law School was using impermissible "racial preferences" in its admissions process (see Hopwood v. Texas, 1996).

The last time the Supreme Court considered the issue of race and university admissions was nearly a decade ago in a case involving the University of Michigan Law School, which in the 1990s began using race as a factor in its admissions decisions to increase the diversity of its student body. Its admissions policy was challenged in court, but the Supreme Court determined, in a 5–4 decision, that the policy did not violate the Constitution (see Grutter v. Bollinger, 2003). Writing for the majority, Justice Sandra Day O'Connor explained that "student body diversity is a compelling state interest" because it promotes "cross-racial understanding," helps to dispel racial stereotypes, "promotes learning outcomes" and "better prepares students for an increasingly diverse workforce." The majority also found that the policy was narrowly tailored to achieve these benefits because it did not use a racial quota, but instead considered race as part of a flexible, individualized assessment designed to build a "critical mass" of underrepresented minority students. The four dissenting justices concluded that the "alleged goal of ‘critical mass' is simply a sham" and that the admissions policy amounted to "patently unconstitutional" racial balancing.

After Grutter, UT began to consider race when filling the spots that were not covered by the Top Ten Percent Rule. In the suit now before the Supreme Court, Abigail Fisher, a white Texas resident who was denied one of these spots, alleges that UT violated her equal protection rights by accepting minority candidates with weaker academic credentials. She also asks the court to reconsider its holding in Grutter. Because three of the five justices who joined in the Grutter majority are no longer on the court (including Justice O'Connor, who was replaced by Justice Samuel Alito in 2006), Grutter may be overruled.

Several psychological studies address legal issues in these cases, and APA has filed amicus briefs to make courts aware of them. For example, APA's briefs cite research showing that unconscious stereotyping and biases toward other racial groups can be reduced through positive exposure to members of those groups (e.g., Blair, 2002; Pettigrew & Tropp, 2000). The briefs also call attention to research indicating that a critical mass of minority students is necessary to promote cross-group interaction, limit self-segregation, dispel prejudice, reduce "stereotype threat" and limit the adverse effects of tokenism (e.g., Schofield & Eurich-Fulcer, 2001; Steele, 1997; Wright et al., 1997; Cohen & Swim, 1995; Lord & Saenz, 1985).

The court recognized in Grutter that the benefits of diversity in higher education "are not theoretical but real" (Grutter v. Bollinger, 2003), and it rejected the notion that race-neutral means can be used "to obtain the educational benefits of student body diversity." It is not clear, however, that the current court will take a similar view, even though a large body of psychological research supports it.

"Judicial Notebook" is a project of APA Div. 9 (Society for the Psychological Study of Social Issues).