US Supreme Court to rule on affirmative action

1 October 2012 by

The US Supreme Court’s term begins today, and race relations is at the top of the court’s agenda. The US press hails Fisher v University of Texas as the most important case the Court has agreed to hear thus far. Word is out that it could sound the death knell for affirmative action in the United States.

The justices are being asked to decide whether race-based affirmative action in college admissions is still constitutional.  The petitioner is a white student who was turned down by the University of Texas in 2008. She claims she was a victim of illegal race discrimination under their policy of affirmative action.

In 1997 the Texas legislature enacted a law requiring the University of Texas to admit all Texas high school seniors ranking in the top ten percent of their classes.   Whilst this measure improved access to tertiary education for many, the colleges protested at having their hands tied with regard to highly talented students who showed promise in certain subjects but did not come in to the top ten percent (including minority students in highly integrated high schools).  To redress this balance the Supreme Court ruled in 2003 that universities could consider a minority student’s race as a “plus factor” in admissions. The Court based its ruling on the need for colleges to ensure a diverse student body. Following this judgment, the University of Texas added a new affirmative action policy to go along with the automatic admission rule  with race being a “plus factor” in admission.

Abigail Fisher did not graduate in the top 10 percent of her class. She instead competed for admission with other non-Top Ten in-state applicants, some of whom were entitled to racial preference as “underrepresented minorities.” Although Ms. Fisher’s academic credentials exceeded those of many admitted minority candidates, UT denied her application. Having “‘suffered an injury that falls squarely within the language and spirit of the Constitution’s guarantee of equal protection,’” Grutter v. Bollinger, 539 U.S. 306, 327 (2003), Ms. Fisher brought this challenge to the use of race in UT’s undergraduate admissions process seeking monetary and injunctive relief. After the District Court had rejected her case, Fisher brought suit in the federal court of appeals, challenging the constitutionality of the affirmative action policy she believed barred her admittance to the school.  The Federal Court  upheld the legality of UT’s policy, in a decision that sharply divided the Circuit bench. The appeal court justices warned that they could not “bless the university’s race-conscious admissions program in perpetuity”, and one of the dissenting judges went further in criticising the majority’s approval of the UT’s race policy when “a race-neutral state law (the Top Ten Percent Law) had already fostered increased campus racial diversity,” and by validating UT’s “unachievable and unrealistic goal of racial diversity at the classroom level to support the University’s race-conscious [admissions] policy.”

The petitioner relied on the Fourteenth Amendment of the US Constitution which requires an admissions process untainted by racial preferences absent a compelling, otherwise unsatisfied, government interest and narrow tailoring to advance that interest without undue infringement on the rights of non-preferred applicants

In the petition to the Supreme Court urging them to overturn the decision below, Ms Fisher reminds the Court  it  had never made any decision which has

 ever suggested that a state university has a compelling interest in using race to further general welfare. By recognizing that interest, the Fifth Circuit went far outside this Court’s nuanced delineation of the permissible goal of student body diversity

Whether a public university can layer racial preferences over a non-racial admissions plan that ensures very substantial levels of minority enrollment is a question which itself warrants review by this Court.

In an unbroken line of decisions, this Court has held that governmental racial classifications demand “the most exacting judicial examination,” a “rule [that] obtains with equal force regardless of the race of those burdened or benefited by a particular classification.”

Although it has generally upheld the constitutionality of affirmative action, the Supreme Court’s approach to the use of race by the government has changed in recent years. According to the Adam Winkler in the Daily Beast, the arrival of Chief Justice John Roberts has had a significant was summed up in a 2007 ruling which invalidated two laws designed to ensure that public high schools were racially diverse.

“The way to stop discrimination on the basis of race,” the chief justice wrote pithily, “is to stop discriminating on the basis of race.” Court watchers expect this colorblind view of the Constitution to prevail again and UT’s policy to be invalidated. The only question is whether the justices will use the opportunity to overturn decades of precedent and declare an end to all race-based affirmative-action policies by colleges and universities.

And Reuters suggests that changes in the Supreme Court’s makeup may imperil the 2003 decision Grutter v. Bollinger, that let universities take race into account to improve diversity. Justice Sandra Day O’Connor, who in that case endorsed race-based admissions at the University of Michigan law school, retired in 2006 and was replaced by the more conservative Justice Samuel Alito.

The LA Times quotes Edward Blum, an activist against affirmative action who launched Fisher’s suit, who believes the success of UT’s automatic admissions policy will show the Supreme Court that race-based policies are no longer needed.

“Using a student’s race to give him an advantage or disadvantage strikes most Americans as wrong”, he said. “They are creating more diversity through the top 10% policy, and every black and Hispanic student can say, ‘My race was not a factor in my admission.'”

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4 comments


  1. Andrew says:

    Not by discriminating against anyone – black or white or Asian or Chinese – on the grounds of race. Allowing that was a blind alley and the sooner the Americans get back to true non-discrimination the better.

  2. Rosemary Cantwell says:

    6 October 2012
    How does one get equality of opportunity if the schooling and background are unequal in the beginning?
    How do children from the poorest backgrounds rise to be prime minister or president?
    This is the real conundrum
    Rosemary

  3. Andrew says:

    All discrimination on the grounds of race, gender, or social origin in admission to higher education is wrong, whether it’s to keep the plebs out or to keep the place from being too full of toffs.

    If the admission form did not disclose which school or sort of school the applicant went to there could be no discrimination and no allegation of discrimination. At the same time we should remove the questions about what their parents do/did for a living and whether they were in higher education, with their appalling East German overtones.

    Then admit on actual, not prospective A-Levels, and for October the following year. Sure, some would decide not to take up the place, but I suggest that they correlate with those who turn up but don’t stay the course – and quit with huge debts and a chip on their shoulder.

    Of course if you want to democratise higher education you need to start with the finances, but let’s not get started . . .

  4. frednach says:

    There in lies the problem affirmative action seeks to redress diversity by negating the most important factor of any selection process, that is consideration purely of the merits of an applicant, as opposed to his her race. Here, the petitioner being a caucasian complained that her race placed her in a presumably otherwise disadvantage in the selection process. I dare say, perhaps, someway later in the line another candidate perhaps of mixed race may also raise a petition, then another perhaps with red hair may also fair a petition and so on..Thus a policy of race plus with good intentions becomes something of a perversity.

    The issue of diversity is important not least as education plays an important part in our development ,well being and in fulfilling the promise of a better future. However, what is important to me is that selection of whatever level must always be based on merit and not race, Put simply, there is always a danger of playing the race card when it comes to race, but there is alas no such thing as discriminating on the grounds of ability or intelligence. My point would be a selection process must be devised so as to accommodate all candidates irrespective of race, creed, colour or creed on merit. The issue then is to devise a selection process that can identify the best candidates using the ‘merit’ test, what that entails is of course a matter for the selectors. In a competition for a place at a prestigious law school a merit test might encompass a bit of everything from advocacy, to a written test to a debate to solving a practical problem, what weight is placed on each criterion must be examined so as to achieve an overall picture of the candidates ability, intelligence and potential- after all they are novices…. In conclusion I say let selection be the merit of all faces.

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