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Faith-based Institutions' Eye on Affirmative Action Case
By
Patricia Zapor
Source: Catholic News Service
Published: Sunday, October 21, 2012
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Students calling for diversity protest outside the U.S. Supreme Court in Washington Oct. 10.
WASHINGTON (CNS) — The Supreme Court case over affirmative action in university admissions involves a state school, the University of Texas at Austin, but the outcome will have ramifications for private and religious institutions as well.

The court heard oral arguments Oct. 10 over whether Abigail Fisher was the victim of discrimination when she was turned down for admission to the university in 2008. In suing the university, Fisher argued that she was denied a spot at the school because she is white and the institution's admissions policy gives unfair preference to racial minorities.

Among the material available to the justices in deciding the case are about 100 "amicus" or friend-of-the-court briefs from hundreds of organizations, including Catholic universities, weighing in on how it should be decided.

The federal District Court and the 5th U.S. Circuit Court of Appeals ruled in favor of the university, which uses a state system giving automatic admission to the top 10 percent of the graduating class of each high school in the state, regardless of race and other factors.

In 2008, applicants falling under that part of the admissions policy accounted for 81 percent of the freshman class. The remainder of the slots, according to the admissions plan, went to students whose applications were weighed on criteria including race, community service, work experience, awards and extracurricular activities.

In defending their admissions policy, the university argues that it serves the school's and its students' interests in providing racial diversity and that the court has supported just such an approach in previous rulings, most recently in Grutter v. Bollinger in 2003.

That's a standard that a wide assortment of other universities and civil rights organizations wants to see upheld. And that entities with other perspectives would like to see scrapped as unnecessary to achieve diversity. They say sufficient diversity comes through race-neutral means such as the top 10 percent admissions plan.

During the oral arguments, the justices seemed to be divided nearly evenly as to whether they seemed inclined to preserve or, in the words of Justice Sonia Sotomayor to the attorney for Fisher, to "gut" the prevailing legal standard under which the University of Texas crafted its admissions program.

Justice Antonin Scalia, on the other hand, mocked the university for attempting to arrange for racial diversity in the classroom, as well as in the overall student body.

"How do they figure out that particular classes don't have enough? What, somebody walks in the room and looks them over to see who looks Asian, who looks black, who looks Hispanic? Is that how it's done?" Scalia said.

Justice Elena Kagan is sitting this case out, presumably because she was involved with it while she was U.S. solicitor general, so it will take five of the remaining eight justices to overturn the lower courts.

Among amicus briefs the court will consider is one filed on behalf of eight Catholic universities, which argues in part the institutions have a First Amendment right to the academic freedom inherent in determining whom to admit.

"The core question in cases such as this has commonly been phrased in a one-dimensional way," by framing it under the Equal Protection clause of the 14th Amendment, said the brief filed on behalf of Fordham University, Boston College, DePaul University, Georgetown University, the College of the Holy Cross, Marquette University, the University of Notre Dame and the University of San Francisco.

The brief's summary says that "academic freedom has frequently been said by this court to be a 'special concern of the First Amendment' and the right of a university to determine whom to admit has been said to constitute a central element of academic freedom," essentially, to determine what sort of education the institution will provide.

The Catholic universities argued that Fisher's case fails to recognize the First Amendment issues at stake. Those rights "should be understood to limit the power of the government to require all universities — public and private — to adopt completely race-neutral admission programs," they said.

Both First Amendment and 14th Amendment protections can be "vindicated by providing, as this court often has, a degree of deference to a university's good-faith determination as to how to further its academic mission, the universities said.

"We urge specifically that when a university (especially a private university) determines that a constitutionally permissible goal — such as diversity within its student body — is essential to providing the highest quality educational experience for its students, a university's judgment about whether a race-conscious admission program is necessary to achieve that goal should not be easily ignored."

In explaining the universities' interests in the case, they noted that each of them consider a variety of factors in admissions decisions. Those include: high-school performance (including grade-point average), high-school quality, class rank, standardized testing results, letters of recommendation, writing ability, participation in extracurricular activities, whether the applicant is a first-generation college attendee or has special artistic talents, community service experience, state (or country) of residence, ethnic background and race.

"Predictors of academic ability — test scores, class rank, high-school performance — are the primary factors considered in the admissions process. The other factors, including an applicant's race or ethnic background, are secondary considerations," they said.

It would, in fact, be inconsistent with a Catholic university's mission to be forced to rely only on programs that focus on the economically disadvantaged applicants to increase diversity, they said, "thereby helping to perpetuate a stereotype that minorities are more often poor. Therefore, use of socioeconomic factors alone does not enable these Catholic universities to achieve the diverse student bodies necessary to fulfill their educational and religious missions."

Another amicus brief filed on behalf of a dozen Protestant denominational bodies that provide campus ministry, the Catholic social justice lobby Network, and the organization Catholics in Alliance for the Common Good argued that a diverse campus environment is vital to their faith mission of preparing students. It said that from a ministry perspective, campus diversity furthers the goal "of providing students with the tools to live in a pluralistic society, cultivating future leaders, and giving individuals the tools to mature in faith, compassion, and mutual understanding."

They said "a diverse campus promotes these goals, as interactions across socioeconomic, racial, ethnic, and religious lines give all individuals the opportunity to explore new and varied points of view, to develop their unique talents and gifts, and to reach out to others with kindness, respect, and compassion."

The court is expected to rule on the case by the end of the term in June.



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