College joins amici brief for Supreme Court affirmative action case

The college’s administration signed an amici curiae brief, supported by 38 elite liberal arts colleges and universities, that was filed to the Supreme Court in the case of Fisher v. University of Texas at Austin. The case is part of a high-profile public debate on affirmative action in college admissions, and the brief argues that race should continue to be allowed as a factor in reviewing college applicants. The lawsuit was filed by a white student, Abigail Fisher, who claims that her rejection by UT-Austin was due to the school’s factoring of race and ethnicity. The Supreme Court’s future ruling may determine permanently whether higher institutions can use race in their consideration of applicants.

The case has been in the public eye for several years and is actually being reviewed by the high court for the second time. In 2013, the Court ruled that colleges had to justify admissions policies that included race as a factor, and raised the bar for what qualified as acceptable standards. The case is now focused on UT-Austin’s specific admissions plan, which was upheld by an appeals court.

Abigail Fisher, the case’s plaintiff, seeks to entirely remove race from the college admissions process, saying that such policies serve as discriminatory judgements. UT argues that accepting undergraduates based partially on race is necessary to building a “critical mass,” defined as a block of students of particular racial backgrounds, a block large enough that sufficient diversity is achieved.

The brief lists a multitude of factors supporting UT-Austin, and argues that small, residential colleges would be harmed if the Supreme Court’s decision were to be applied not only to UT-Austin but to all schools, assuming that the Court rules against affirmative action. According to the brief, these high-level liberal arts schools that value and actively seek racial diversity would have no sustainable alternatives to achieve that end, leading to a “predictable, substantial resegregating effect.”

“Many private colleges were created, and are funded, as engines of social change, and the Court should consider the realities of selecting students in a society in which race still matters and the effects of discrimination and entrenched segregation still linger,” the brief, written by the firm Proskauer Rose LLP, argues.

Dean of Admissions Jim Bock agrees that Swarthmore, in particular, would struggle to build its ideal community without room for racial considerations.

“Considering a student’s background and experiences in context is critical to understanding what she might add to the Swarthmore community,” Bock said. “Ending affirmative action will impede all schools’ efforts to diversify their campuses.”

According to Sharmaine LaMar, assistant vice president for risk management and legal affairs, this is not the first time the college has taken a public stance on affirmative action. In 2003, Swarthmore joined a brief submitted to a case in which the University of Michigan Law School’s racial admissions policies were narrowly upheld. The school was also party to a brief, similar in content to the 2015 edition, written for the first edition of the Fisher v. UT-Austin case in 2013. Both of the Fisher briefs were organized by Amherst College.

The brief makes clear that diversity in student backgrounds has significant educational advantages. One benefit is that colleges have designed curricula and programs that integrate practical applications of diversity. Swarthmore was positively cited for a recent initiative to make STEM subjects more integrated with underrepresented minority students. Peer mentors were introduced into the intro biology class, and it was found that more majority students were retained in biology and the natural sciences as a result. Students have also called for the school to develop more ethnicity-based academic programs on top of the current ones, which include black studies and Latin American studies.

Elite liberal arts colleges, the brief says, are highly aware that higher education is inherently difficult to access for certain groups of young adults, and liberal arts colleges have a particular responsibility to be available to applicants of all backgrounds. These schools acknowledge a history of racial inequities, while also noting that such schools have often been ahead of their times in promoting and engineering diversity. The need for intentional community-building is therefore even more critical and “cannot be dismissed as a fad or late-twentieth-century social engineering.”

“[Colleges] cannot be reasonably assured of having the desired range of talent, international students, legacy students, and students from underprivileged backgrounds without noting and considering all those factors when it comes time to discuss each applicant,” the brief reads.

“Nor could they be assured of obtaining a racially diverse class without making efforts to attract applications from applicants with various backgrounds and then considering the experience of racial minorities.”

Fisher and other opponents argue that the result of colleges’ quests for the ideal diverse community is, intentionally or not, the existence of a quota system. The brief, however, asserts that colleges do not actually employ such a method. Liberal arts schools, it notes, take great pains to allow students to self-identify their ethnic backgrounds, and while they seek to admit enough students of each major ethnicity, year-to-year percentages often fluctuate. At Swarthmore, for example, the number of students identifying as black or African American has varied from five to seven percent of the total undergraduate population.

Bock notes that ethnicity is just one piece of a complex, multifaceted process.

“Swarthmore employs a holistic admissions process, and race is but one among many factors that might be considered when rendering admissions decisions,” he said. “In admissions, we strive to find students who will add to the intellectual, academic, and social breadth and depth of our intentional community.”

Higher education experts say that affirmative action admissions policies could be at major risk in the Fisher lawsuit. One reason is that the Supreme Court rarely accepts a case addressing a similar issue as one that was ruled on the recent past — in this case, nearly the same case was ruled just two years ago. Scott Jaschik of Inside Higher Ed notes that this usually only happens when the Court desires to make a change.

Like many high-profile cases in the modern era, the case is expected to split along ideological lines, and may come down to the vote of Justice Anthony Kennedy. Kennedy voted against affirmative action in the 2003 Michigan case, and although he and the Court decided to allow UT-Austin’s plan in the 2013 review, Kennedy was strongly against approving the policy.

“The concept of critical mass is a delusion used by [Michigan Law School] to mask its attempt to make race an automatic factor in most instances and to achieve numerical goals indistinguishable from quotas,” he wrote in a dissent to the Michigan decision.

While Kennedy was willing to compromise two years ago, Jaschik notes that legal experts seem to believe that he and the conservative wing of the Court, based on their readiness to re-accept the case, will choose to vote down affirmative action.

Bock and the rest of the administration believe this would be harmful for Swarthmore, especially in the context of contemporary American culture.

“All colleges, including Swarthmore, can do a better job of diversifying their campuses, and given today’s national climate, having a racially diverse campus has never been more important as we learn from both our commonalities and our differences,” he said.

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