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Monday, June 10, 2013

Is Affirmative Action on the Way Out?

A Look at the Pending Case of Fisher v. The University of Texas at Austin

Photo Credit: Joseph Mehling/Dartmouth College.
Affirmative action programs have always been controversial and there are compelling arguments on both sides of the issue.  Recently, the Supreme Court heard the case of Fisher v. The University of Texas at Austin, in which a white female student is suing for admission to undergraduate school and the Obama administration has joined the action in support of the school.  This case will determine whether or not it is still constitutional to use race as a factor in public undergraduate admissions.  If the answer is no, it is likely to have a rippling effect through all forms of affirmative action.

Note:  This article will use the term “black” as opposed to African American primarily because it applies to a wider swath of people regardless of whether or not they connect their heritage to Africa.

Those in favor of affirmative action argue that these programs serve to balance out hundreds of years of discrimination.  Minority groups have been underrepresented in higher education, higher levels of business and political leadership.  Correcting this imbalance will eventually result in the leadership of society beginning to look more like the general population, rather than being disproportionately white and male.  Additionally, higher education may be improved by having students from diverse backgrounds contributing to classroom discussion.

Those who oppose affirmative action argue that, in 2013, the detriments of Affirmative Action far outweigh its benefits and that it perpetuates the historical error of considering skin color rather than the merits of the individual.  Additionally, affirmative action programs may convey the subtle message that minorities are not as smart or as qualified.  Why else would they need preferential treatment unless they are not good enough on their own?  There are a limited number of positions and it is not fair to a non-minority who is more qualified to be rejected for a job simply solely for belonging to the wrong race.  Giving preferential treatment to certain races will only drive a wedge between people, polarize society, and perpetuate racial hatred.

Justice Thomas, the only black justice on the Supreme Court, has long been outspoken against affirmative action programs.  Justice Thomas believes that the Constitution should be color-blind and that admission and hiring decisions should be based solely on the abilities of the individual candidates.

Regardless of where one falls on the issue, almost everyone recognizes that affirmative action is only a temporary measure to try to equalize the playing field for minorities.  The disagreement is not a question of if, but when it should expire.  Racism is rapidly declining in society and businesses generally desire the candidate who will bring them the best bottom line.  In many ways, Martin Luther King Jr.’s dream is coming to pass; with each passing generation, color blindness grows.  As time goes on, programs like affirmative action will actually serve to undermine the growing color blindness of society by forcing colleges and businesses to consider people differently based solely on their race.  At some point affirmative action will do more harm than good, but has that time already come?

The key legal issue is the interpretation of the Equal Protection Clause of the Fourteenth Amendment.  Everyone agrees that the main purpose of the Amendment was to provide legal protection to blacks, particularly newly freed slaves.  This is why, in the past, it was not interpreted to prohibit affirmative action programs intended to benefit blacks.  But many opponents of affirmative action, including Justice Thomas, point to the neutral wording, “no state shall...deny to any person within its jurisdiction the equal protection of the laws.”  The plain text suggests that it bans or limits all race-based programs.

In Fisher v. University of Texas at Austin, the Supreme Court is taking a fresh look at these issues for the first time in a decade.  In the 2003 cases of Gratz v. Bollinger and Grutter v. Bollinger, a sharply divided Court ruled that schools could consider race as a factor in higher education admissions, but that a ridged point system or quota went too far.  This expounded on the initial decision in the University of California Regents v. Bakke.

The rule against point systems and quotas makes sense at first glance, but the effect is that in order to be upheld, a race-based admissions plan must be as cryptic as possible.  The more open and objective a school seeks to be with its admissions plan, the more likely it is to be struck down.  This has created a period of uncertainty and ambiguous admissions procedures.

The Gratz and Grutter decisions were heavily divided and were based around the views of Justice O’Connor, who is no longer on the court.  It now it appears that the votes to strike down the program are there.  The four conservative justices are opposed to the program and so appears Justice Kennedy, who dissented when the Court affirmed the plan in Grutter.  After the oral arguments, it did not appear that Kennedy’s opinion had changed.

If the Court rules against the University of Texas, it could strike down affirmative action altogether or it could hold narrowly that only this particular program is unconstitutional.  However, the program in question merely “considers” test scores, grades, work experience, leadership qualities and race.  Given the ambiguity of this admissions practice, it will be difficult for any holding to strike the program without effectively destroying affirmative action.  If this program is struck down, many schools will probably conclude that the risk of losing a lawsuit is too great to continue any race-based admission program.

It is also possible that there will be no majority opinion and the court will split into three camps: (1) ban affirmative action, (2) allow it freely, and (3) limit it.  If that is the case, then the least restrictive opinion, in this case the centrist position would become law, albeit weak law.  Either way, the opinion of Justice Kennedy will likely shape the future of affirmative action.

It may, however, behoove the court to furnish some sort of clear rule.  There are many similar lawsuits pending.  Many lawyers desire to take a potentially historical case and there is no shortage of students who wish to seek redress from being denied admission in favor of an apparently less qualified candidate.

The effect of the case will almost certainly be far reaching, the law developed in this case will inevitably be applied to other forms of affirmative action, including government preferences for minority contractors and private university admissions.  Even though the Fourteenth Amendment does not directly apply to private institutions, the interpretations of law in this case may affect private claims under the Civil Rights Act.

Read the Briefs

Listen to the Oral Argument

Read the Original Case Decision from The United States District Court, W.D. Texas, Austin Division. – Finding the Admissions Program Constitutional

Read the Appeal Decision from the Fifth Circuit Court of Appeals - Affirming the District Court’s Decision

The opinion is in. Read about it HERE.

Read the opinion below: