Obama Lawyers Urge High Court to Back Affirmative Action

The Obama administration urged the U.S. Supreme Court to reaffirm the legality of race-based college admissions, as the justices prepare to review the affirmative action programs that have become fixtures at the nation’s top universities.

The high court will hear arguments Oct. 10 on a white woman’s contention that she suffered racial discrimination when the University of Texas rejected her application for admission.

The case has broad implications for selective universities, almost all of which use race as an admissions factor to diversify their student bodies. In a 35-page brief filed today, the administration sought to make the issue one of national security, saying the military, Federal Bureau of Investigation and Department of Homeland Security all rely on universities to produce a steady stream of diverse graduates.

“The United States has a critical interest in ensuring that educational institutions are able to provide the educational benefits of diversity,” U.S. Solicitor General Donald Verrilli argued in a brief signed by officials in six federal departments, including the Pentagon.

Bakke Case

Universities have had the court’s blessing for affirmative action since the 1978 Regents of the University of California v. Bakke decision gave race-conscious admissions a limited endorsement. The court reaffirmed that ruling in 2003, saying in Grutter v. Bollinger that universities can consider race in admissions as long as they don’t do so mechanistically.

With five of the nine current justices openly skeptical about racial classifications, the 2003 decision may now be in jeopardy.

Today was the deadline for outside groups to file briefs supporting Texas in the case. Among those siding with the university was a group of 59 companies, including Microsoft Corp. (MSFT) and Wal-Mart Stores Inc. (WMT)

The companies said they “must be able to hire highly trained employees of all races, religions, cultures and economic backgrounds.

Colin Powell, the former secretary of state and chairman of the Joint Chiefs of Staff, joined a group of retired military leaders who also urged the court to side with Texas.

‘Enormous Consequences’

The rejected student, Abigail Noel Fisher, says the university is violating the 14th Amendment’s equal protection clause.

“If any state action should respect racial equality, it is university admission,” Fisher’s lawyers argued in a court filing in May. “Selecting those who will benefit from the limited places available at universities has enormous consequences for the future of American students and the perceived fairness of government action.”

Texas uses a system that combines racial preferences with a rule that guarantees admission to state residents who graduate in the top 10 percent of their high school class. The so-called Top Ten Percent Law was designed in part to boost minority admissions at state universities.

One issue for the Supreme Court will be whether the hybrid nature of Texas’s approach undermines the rationale for race- based admissions. A federal appeals court in New Orleans upheld the Texas system.

Racial Role

Fisher’s lawyers point to statistics indicating that the Top Ten Percent Law, enacted in 1997, was helping ensure a significant number of minority students even without explicit consideration of race.

The state says it uses race in a more limited way than the University of Michigan Law School in the 2003 case. Texas says that, unlike Michigan, it doesn’t track the racial composition of its entering class during the admissions process. Texas also says it doesn’t have numerical goals for minority admissions.

“The fact that race has only a modest and nuanced role in admissions decisions is not a constitutional problem,” the university argued in court papers filed last week. “It is the hallmark of the type of plan this Court has held out as constitutional since Bakke.”

The case will test the impact of the court’s changed makeup, particularly the 2006 retirement of Justice Sandra Day O’Connor, who wrote the 2003 opinion, and the appointment of her successor, Justice Samuel Alito.

Alito was in the majority in a 2007 decision that put new limits on public school integration efforts -- and raised questions about the viability of other race-based government policies.

The case, which the court probably will decide in the first half of 2013, is Fisher v. University of Texas at Austin, 11- 345.

To contact the reporter on this story: Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editor responsible for this story: Steven Komarow at skomarow1@bloomberg.net

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