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Monday, June 24, 2013

Is Affirmative Action on the Way Out?

Fisher v. The University of Texas at Austin -  The Opinion is In.

Photo Credit: Joseph Mehling/Dartmouth College.

The decision is in and while it does not overrule Grutter, it affirmed a strict scrutiny standard for affirmative action admission programs and overruled the Fifth Circuit, which had given some deference to the school.

Justice Kennedy delivered the opinion in which the court stated that the fifth Circuit failed to hold the University of Texas' admission plan the strict scrutiny.
Because the Fifth Circuit did not hold the University to the demanding burden of strict scrutiny articulated in Grutter and Regents of Univ. of Cal. v. Bakke, 438 U. S. 265, its decision affirming the District Court’s grant of summary judgment to the University was incorrect....As the Court said in Grutter, it remains at all times the university's obligation to demonstrate, and the judiciary's obligation to determine, that admissions processes 'ensure that each applicant is evaluated as an individual and not in a way that makes an applicant's race or ethnicity the defining feature of his or her application.
In its decision, the Court articulated a new two-part test.  In the first step, a court can look at the good faith reasons for a university to include race as a factor in undergraduate admission.  In the second, and more important part of the test, the university must have attempted a less-restrictive, non-race-based means of increasing diversity and then demonstrate that its race-based admission policy is sufficiently narrowly tailored to accomplish that goal.

"A university must make a showing that its plan is narrowly tailored to achieve the only interest that this Court has approved in this context: the benefits of a student body diversity that encompasses a broad array of qualifications and characteristics of which racial or ethnic origin is but a single though important element."

Justice Scalia noted that he would have overturned Grutter, had the plaintiff asked for it and Justice Ginsberg filed a lone dissent defending the actions of the Fifth Circuit as consistent with Supreme Court Precedent.

Justice Thomas stated in his lone concurring opinion that he would have overturned Grutter entirely.  In his lengthy opinion, Thomas compared proponents of affirmative action to past proponents of segregation, stating that the same claims were used to justify both programs.  As Thomas put it:
The University asserts, for instance, that the diversity obtained through its discriminatory admissions program prepares its students to become leaders in a diverse society...The segregationists likewise defended segregation on the ground that it provided more leadership opportunities for blacks.
Thomas concluded that, "If the Court were actually applying strict scrutiny, it would require Texas either to close the University or to stop discriminating against applicants based on their race.  The Court has put other schools to that choice [during desegregation], and there is no reason to treat the University differently."

Affirmative action programs have always been controversial, but this case caught the attention of many for several important reasons; one being that the Obama administration joined the action in support of the school.  Another being the recent changes to the members of the Court.

The state of the law going into the case was based on the 2003 decisions in Gratz and Grutter.  Both of which heavily divided and based around the views of Justice O’Connor, who is no longer on the court.  It appeared to many that the votes to strike down all or most race-based admissions programs were in place.  The four conservative justices are generally opposed to programs like the one in this case 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.

Regardless of where one falls on the affirmative action issue, almost everyone recognizes that affirmative action is only a temporary measure; an attempt equalize the playing field for minorities who have suffered from discrimination.  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.

In the opinion of Justice Thomas, the time to strike affirmative action was now, but the majority of the court still believes that it should exist, but in an even more limited form than in the aftermath of Gratz and Grutter.

Despite today's narrower holding, it is likely that this will cause a further decline in affirmative action plans.  The program in question merely “considers” test scores, grades, work experience, leadership qualities and race.  Given the ambiguity of this admissions practice, it would be difficult for any holding to strike the program without leading to the demise affirmative action.  Today's decision will undoubtedly fuel opponents of  affirmative action to challenge it in every possible arena.  There are already many similar lawsuits pending and no shortage of potential plaintiffs and attorneys willing to take a potentially historical case the the Supreme Court.

Given today's decision, many schools will probably conclude that the risk of lawsuit is too great to continue any race-based admission program.

Read the opinion here: