WASHINGTON – In the latest brief filed in the affirmative action case pending before the U.S. Supreme Court, the University of Texas at Austin defends diversity but denies that race is being used in any way that puts a person from a particular race at a disadvantage.
“Diversity improves academic outcomes and better prepares students to become the next generation of leaders in an increasingly diverse society,” the brief says in one passage. “Consistent with the holistic and modest way in which race is considered, it is impossible to tell whether an applicant’s race was a tipping factor for any given admit,” it says in another.
Proponents of affirmative action say the brief makes a strong case for not overturning the 2003 case that allows race-conscious affirmative action, but one observer is skeptical as to how persuasive the university’s arguments will be in convincing U.S. Supreme Court Justice Anthony Kennedy, the one justice whose opinion will likely determine the outcome of the case.
“I thought they were smart to target Kennedy, but they were incomplete,” said Richard D. Kahlenberg, a senior fellow at The Century Foundation.
Throughout the brief, UT Austin makes the case that they satisfied the concerns that Kennedy raised about the use of race to achieve numerical goals in his dissent in Grutter v. Bollinger, the 2003 case in which the court ruled that it was legal to narrowly use race in admissions decisions “to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.”
“But what they don’t mention, and this key, is that Kennedy also said he wanted race used as a last resort and he wanted to put more pressure on universities to create diversity through other means,” Kahlenberg said.
