In 2003, U.S. Supreme Court Justice Sandra Day O’Connor said affirmative action in college admissions would be a necessary equalizer for another 25 years. Nine years later, the issue is back in the hands of the Supreme Court, and Duke, which has a vested interest in using race as a factor in admissions, filed a legal statement in support of affirmative action.
Affirmative action can be broadly defined as any policy that takes personal traits such as race, gender, skin color, sexual orientation or nationality into consideration to benefit an underrepresented group’s chance of gaining employment or acceptance to a university. During the last 50 years, such policies have been contested in the Supreme Court on numerous accounts—most recently in 2003, where the justices voted five to four to uphold the use of race as a factor in college admissions.
The issue has resurfaced in the Supreme Court in a case filed by a 22-year-old woman, Abigail Fisher, in which Fisher claims that despite being a qualified applicant, she was denied admission to the University of Texas at Austin because she is white. Duke, along with many other private universities, including Ivy League schools, Stanford University, Williams College and Amherst College, has jointly filed an amicus brief requesting that the Court further consider the arguments to uphold affirmative action practices.
The brief filed supports UT, specifically in its view that race be permitted for use as one of the many factors that determine an applicant’s admission.
“Amici accordingly urge the Court to interpret the Constitution... to continue to allow educational institutions to structure admissions programs that take account of race and ethnicity as single factors within a highly individualized, holistic review process,” the brief states.
Although Duke is a private institution, the University could be affected by the outcome of the case, Dean of Undergraduate Admissions Christoph Guttentag said. If the Supreme Court determines that affirmative action admissions policies violate the Equal Protection Clause of the 14th Amendment of the U.S. Constitution, even private universities may need to amend their protocols to be compliant with the Civil Rights Act of 1964, which mandates that any organization receiving federal funding may not discriminate on the basis of race, national origin, sex or religion. Duke receives some federal funding, so it may have to amend its policies based on the decision.
Fisher v. University of Texas specifically regards the constitutionality of the admissions policies practiced by UT, which utilizes race as one of many factors in the holistic admissions process that is used to make up half of its class. The rest of admitted students are accepted automatically for graduating in the top 8 percent from an in-state high school.
A ruling in favor of Fisher would almost certainly bar schools from allowing race to influence the admissions process in any way, said James Coleman, John S. Bradway professor of law. But a ruling siding with UT could also further limit the use of affirmative action, a result that has seemingly become a tradition in the more recent cases on the subject. The only ruling that could potentially have little consequence would be a decision in which the Court upholds its 2003 decision but strikes down UT’s individual policy, meaning that considering race in the admissions process is constitutional—but UT’s policy is not in its own right.
Duke, which does not automatically accept applicants, uses a holistic process similar to that of UT for reviewing all of its applicants, Guttentag said. The University’s current admissions process considers four key factors—background, interests, values and experiences. Because race plays a role in shaping each of those factors, it influences acceptance by becoming an underlying factor in its own right, he added.
“The most important thing to realize is that race is never the determining factor—by itself, it never makes a difference” Guttentag said. “I’ve never been in a situation when I’ve had two applicants who are meaningfully exactly the same except for race, geography or gender.”
In determining which applicants are accepted, Duke’s admissions office see race as a separate factor from socioeconomic status, but both contribute to diversity, he added.
“We’re always trying to create a class that is both talented and diverse,” Guttentag noted. “Talent alone and diversity alone are not what we’re looking for. We want both, and race is a factor in that diversity.”
Provost Peter Lange, who—along with President Richard Brodhead—was heavily involved in making the decision to file the amicus brief, explained that dealing with the Supreme Court is nothing new for Duke. The University jointly filed an amicus brief most recently in the 2003 affirmative action case, Grutter v. Bollinger, which reaffirmed a prior ruling defining quotas, where a specific percent of an incoming class must be of an ethnic background, is unconstitutional.
“Diversity is an extremely high priority for us as a university, because we see it as important for the University’s value,” Lange noted. “We do not want to be deprived of the opportunity to pursue that value, and we like the complex and personalized admissions process.”
Duke filed the 2012 brief to ensure that the Court understands how Duke does admissions, but the effectiveness of the filing is to be determined, he added.
“It probably depends on the specific justice,” Lange said. “I suspect some of them are not open to new information, and some of them are. I do think these briefs count for justices who are either open to argument or need further ammunition to make their argument.”
Justice Elena Kagan, an Obama nominee who is generally considered to be among the four more liberal justices, has recused herself from the case because of her previous involvement as dean of Harvard Law School. It is quite likely that the Court will limit or reverse its 2003 decision, Coleman said.
Guttentag added that Duke’s admissions office will be required to accommodate any changes the Court mandates.
Oral arguments occurred on Oct. 10, but the Court is not due to make a decision until the end of June.
Editor's Note 11/3/2012: This article was originally published with a photo illustration. Upon further review, it was determined that the image did not meet the editorial standards of The Chronicle. It has been removed.