In a decision that is sure to toss even more political meat into the 2012 election arena, the Supreme Court on Tuesday announced that it would take another look at the use of race in college admissions.
The case of Fisher v. University of Texas centers on Abigail Fisher, a student from Sugar Land, Texas, who applied for and was denied admission to the University of Texas in 2007. Fisher claims that her test scores and grades "exceeded those of many of the admitted minority candidates,” and she sued alleging a violation of the equal protection clause.
The Texas university system makes clear that it does factor race into its admissions decisions, a consideration first called constitutional by a plurality of the Supreme Court in Regents of the University of California v. Bakke in 1978. Texas universities automatically admit students in the top 10% of their class on a race-neutral base and then supplement their student bodies with an admission process that does take race into consideration. This second program, Fisher alleges, violates the constitutional guarantee of equal protection.
While some states have explicitly banned the use of race in admissions decisions, the practice was upheld by a narrow 5-4 margin in 2003 in the case of Grutter v. Bolinger. There, the Supreme Court held that the use of race as a factor in admissions is constitutional, so long as no point or weight value is given to race in the consideration process.
The Court’s decision to review Fisher signals a potential sea-change in the legal posture the Court seeks to take on the issue of affirmative action. Five of the nine currently sitting justices have stated on the record that they are against the use of race as a factor in admission decisions and the decision to review Fisher suggests that they may be ready to put words to paper, reversing the long-standing acceptance of affirmative action programs upheld in Bakke and Grutter.
The balance of the Court has certainly shifted away from the more liberal leanings that helped spawn Bakke and Grutter. Grutter opinion author Sandra Day O’Connor has since been replaced by far more conservative Justice Samuel Alito and an expected member of the Court’s liberal wing, Justin Elena Kagan, will be taking no part in consideration of the case due to her prior work on the case as solicitor general.
The Roberts Court has also taken a more aggressive stance at eliminating programs that factor race into the decision-making process. In a 2007 decision concerning the use of race in determining integration programs in public schools, Chief Justice John Roberts wrote that “racial balancing is not transformed from ‘patently unconstitutional’ to a compelling state interest simply by relabeling it ‘racial diversity.’” He went on to conclude that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
The nature of the case in Fisher gives the Justices several options for potential outcomes. They could dodge the question entirely and rule that a university admissions program cannot have both an automatic race-neutral admissions policy and a subjective race-factoring admissions policy. They could declare programs that use race in admissions decision unconstitutional in situations where other, race-neutral programs, have achieved the stated goals of diversity and integration. Alternatively, the Court could attack the question directly, explicitly reversing Bakke and Grutter and declaring the use of race as a factor in admissions decisions unconstitutional.
Whatever their decision, the timing of the oral arguments in early October coincide with the closing days of the 2012 election, a fact that is sure to stir a fiery debate among politicians and pundits. The Court’s final ruling will likely come in early 2013, by which time Abigail Fisher will have graduated from Louisiana State University, where she ended up enrolling. Despite being unable to attend the school of her choice, Fisher’s name may very well become famous in the world of affirmative action policies and law.
Photo Credit: TexasGOPvote
The Discussion
If private contracts and private property rights were strictly enforced, this would not be a problem. Universities would be free to chose any admissions policy they saw fit. Since violently stolen tax dollars are used to fund public education, this has created quite the conundrum for the courts.
Mark, I wish your opinions were highlighted in your article. I enjoyed your commentary below more than the article! You've done your profession proud.
Constitutionally speaking, affirmative action doesn't have a leg to stand on. You don't address racism and discrimination by enacting policies that discriminate based on race. It's nonsensical.
There is also a strong argument to be made that AA is a failure.
http://www.hoover.org/publications/hoover-digest/article/8108
http://www.intellectualconservative.com/article3873.html
http://www.capitalismmagazine.com/culture/racism/2183-dirty-secrets-about-affirmative-action.html
http://www.redcounty.com/content/why-walter-williams-was-right-affirmative-action-promotes-discrimination
It's about time. For those of you who assume affirmative action produces only positive results for minorities, check out the predictions of Clyde Summers. He introduced the idea of the "cascade effect," which stated that affirmative action would merely shift the limited pool of qualified minority students upwards, into colleges where they were academically outclassed by their peers. Good summary here, on page 44 of the PDF: http://www.law.berkeley.edu/faculty/rubinfeldd/SanderFINAL.pdf
Mr.Kogan- This whole issue is becoming an albatross because the proposed solutions are too wishy- washy. Why wouldn't it makes sense for a law school, or any other school, to have a policy of admitting 100 minority students out of 1,000? The school just wants to have 10% of its students be of color. The Texas algorithm is too complicated and too subjective.
I suppose someone out there will say having a given target is unconstitutional, but I don't see how that is the case.
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An interesting and nicely written article, Mark.
This is certainly a conundrum. On the one hand, I can fully understand the premise of removing race as a necessary criteria for school admissions. Then again, it could well be in the best interests, for many reasons, of any school to desire "presence" or "representation" from amongst the many diverse communities within USA and beyond; schools should be able to reach their own admissions decisions.
I'm thinking that the primary dilemmas in education occur K-12 rather than at the collegiate level.
Also, here's an interesting glimpse, from Morgan Freeman, on resolution of the race question:
http://www.youtube.com/watch?v=GeixtYS-P3s
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Very nice summary. Though it didn't come out in the piece, in the commentary, you appear to have voiced your support for a ban on the use of race in admissions processes. Do you believe that diversity and integration are worthy goals for private institutions to ascribe value? Also, should the Supreme Court ban discrimination based on legacy preferences as well?
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As an American born to immigrant parents, all I'm hearing is the 'privileged' lifestyle of individuals who don't have firsthand experience. Education is anything but an equal right in the US from the moment you enter a school that's public vs. private & beyond. I've seen it first hand & unless you've experienced it I find it difficult to listen to those who encourage the removal of affirmative action without a better alternative to take it place.
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Race has no business being anywhere in government especially learning centers.
Previous Irish, Polish, German and other groups that were minorities are now considered "white" to prove a majority. Unless you can prove pure blood, you can't claim Indian heritage even if you are part Indian without birth records which never existed for some. So, its becoming self-describing. My son actually puts "black" on his application and gets union contract jobs because they can't prove otherwise. I don't approve but it is shrewd. That is what racial quota's and consideration do - its a deception of the truth that encourages deception to counterbalance. I hope for reversal of Bakke and Grutter. I won't hold my breath on SCOTUS doing right.
Good write-up
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Overturning Grutter would be an important step in the right direction. Race is at best an imperfect proxy for the real social ills Affirmative Action is supposed to address and hard to square with our desire for a society where all races are treated equally.
A class based affirmative action would likely do more to allow disadvantaged youth of all races access to high quality education and help prevent the existence of a permanent underclass.
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I can't believe how short sighted people who supported the Grutter v Bolinger outcome are. As a minority, I cringe when a Supreme Court decision contains language such as "the use of race as a factor in admissions is constitutional".
I understand that historically minorities have been underrepresented at colleges. However, changing who is being discriminated doesn't eliminate discrimination. Instead, it sets a precedent for more of it.
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In 1996, California passed Prop 209 ending the use of race as a factor in govt hiring and public education. Critics said admission and graduation rates for minorities would be drastically reduced. Just the opposite has happened.
http://articles.latimes.com/2010/jul/12/opinion/la-oe-lehrer-affirmativeaction-20100712 ; http://public.econ.duke.edu/~psarcidi/prop209.pd
It's time to end the labeling and pigeon-holing that only maintains stereotypes and unintentionally holds people back.
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Let's hope this doesn't get overturned. Further it would be nice if Justice Thomas had the same scruples as Kagan. He will be hearing and ruling on cases involving Monsanto, where he once worked as counsel, and also in cases concerning people and issues his wife lobbied for.
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