diversity

Essay on the meaning of the Supreme Court ruling on affirmative action

The Supreme Court this week decided Fisher v. University of Texas.  It did not decide, as many had expected, what the future affirmative action in American higher education would be. Instead, the Court punted, putting off for a future day any definitive ruling on the rules of engagement for affirmative action.

In a nutshell, rather than rule on the merits of affirmative action, seven of eight Justices simply held that the lower court had not applied the correct legal standard, and sent the case back for reconsideration.  Two justices, Clarence Thomas and Antonin Scalia, made it clear they would end all race-conscious affirmative action right now.  One justice, Ruth Bader Ginsburg, made it clear she would keep the law exactly as it now stands, under which affirmative action is permissible. Six justices are still playing it close to the robe, waiting for another day.

The Fisher case arose against the backdrop of the peculiar history of affirmative action in Texas.  In 1996, in a case entitled Hopwood v. Texas, the U.S. Court of Appeals for the Fifth Circuit issued a ruling that led to the temporary end of affirmative action in Texas. In  Hopwood the court struck down the University of Texas Law School’s affirmative action program, holding that the pursuit of diversity in education was not a "compelling governmental interest" and that the use of race and ethnicity by the Law School violated the 14th Amendment’s Equal Protection Clause.  Hopwood was interpreted by the Texas attorney general as effectively banning all race-conscious admissions programs in all of the state’s public universities and colleges, at all levels of higher education.

In 1997, responding to Hopwood, the Texas legislature enacted "The Top 10 Percent Law," mandating that any student finishing in the top 10 percent of his or her high school class be granted automatic admission to any Texas state university.  The purpose of the law was to enhance the diversity at public universities in Texas.  Although on its face the law was race-neutral — it simply imposed a mathematical threshold that guaranteed admission to the top 10 percent of all high school students — it worked to modestly enhance diversity, because so many Texas high schools were predominantly populated by students of only one race.

The immediate need for this system ended, however, in 2003 with the Supreme Court’s decision in Grutter v. Bolinger, upholding as constitutionally permissible the University of Michigan Law School’s aspiration to enroll a critical mass of minority students. Grutter, along with its companion case, Gratz v. Bollinger, formed a pair of 14th Amendment bookends that for the last 10 years had marked the boundaries of what was permissible and impermissible in affirmative action in admissions.

The Grutter and Gratz decisions built on the views of Justice Lewis Powell in the Supreme Court’s first higher education affirmative action decision, Regents of the University of California v. Bakke, decided in 1978, in which Justice Powell authored a compromise opinion that applied a rigorous legal standard  known as "strict scrutiny" to affirmative action, a standard that requires that a university’s use of affirmative action be justified by a "compelling" justification, such as the achievement of a diverse student body, and employ a mechanism to achieve that end which was "narrowly tailored."  For Justice Powell, this requirement meant that the admissions process had to be holistic, not a mechanistic quota designed to achieve levels of diversity that mirrored the racial and ethnic demographics of the general population.

Grutter, which upheld the Michigan Law School’s affirmative action program, held that college could employ a "holistic" approach to admissions calculated to achieve a "critical mass" of minority students within a student body, based on what Grutter recognized as a compelling interest in diversity. Gratz, in contrast, struck down Michigan’s undergraduate admissions program, because it was mechanistic, not holistic, actually assigning fixed numerical points to students based on their minority status. This rendered the undergraduate program too rigid and quota-like, and in the view of the Court, unconstitutional.

Now we come to Fisher itself. The plaintiff, Abigail Fisher, applied to the University of Texas at Austin in 2008, but was denied admission. She instead went to Louisiana State University. Fisher was in the top 12 percent of her high school class, and thus could not benefit from the Texas 10 percent regime, but was instead relegated to competition for the remaining seats in the freshman class admitted outside the 10 percent system.  In the year she applied, approximately 81 percent of the class at UT was filled by the 10 percent system, leaving Fisher as one of the applicants for the remaining 19 percent of the class. Fisher alleged that she was denied admission because Texas used the sort of racial and ethnic preferences approved in the Michigan Grutter ruling to add additional diversity to the Texas student body in that remaining 19 percent of the class, claiming that her academic record was stronger than the records of minority students who were admitted over her.

Texas disputed Fisher’s assertion, stating that under the holistic approach to admissions it employed to fill the final portion of its class, Fisher could not prove she would have been admitted, even if Texas had not used race and ethnicity as plus factors to enhance diversity. Fisher in turn argued that whether or not she could prove that she would have been admitted to Texas but for her race, she still was entitled to participate in an admissions program that was not tainted by unconstitutional race discrimination. Since the 10 percent system already increased racial diversity at Texas, Fisher argued, Texas could not engage in piling on, seeking yet additional diversity in rounding out the profile of the student body.

Fisher did not launch a wholesale challenge to the Grutter ruling, but instead framed her case in a more measured manner, arguing that whether Grutter was right or wrong, it ought not apply when a state has demonstrated that a race-neutral alternative exists, such as the 10 percent system. In response, Texas argued that the 10 percent system did not achieve sufficient diversity, either quantitatively or qualitatively, to vindicate its compelling interests in achieving a more diverse student body.

This week's opinions from the Supreme Court did not resolve the issue. The seven-Justice majority opinion of Justice Anthony Kennedy interpreted the lower court ruling  in the case, by the U.S. Court of Appeals for the Fifth Circuit, as failing to conscientiously apply the "strict scrutiny" test.  Instead, as the majority saw it, the lower court had merely required that the University of Texas demonstrate that its decision to reintroduce race as a factor in  admissions be made  "in good faith." This "good faith" standard, the majority held, was inconsistent with the demands of Bakke, Grutter and Gratz, and therefore the Supreme Court remanded the case back to the Fifth Circuit to apply the correct standard.

Many of us will now be parsing the various opinions in Fisher sentence by sentence for additional clues as to where the Supreme Court may eventually be heading with affirmative action in higher education.  Here are a few preliminary thoughts.

Abigail Fisher’s lawyers, as previously noted, did not seek an outright overruling of the Bakke / Grutter / Gratz line of cases.  Are there any hints to be gleaned from Fisher as to what the future of that line of precedent will be?  Justice Kennedy’s opinion included this critical yet cryptic sentence: "We take those cases as given for purposes of deciding this case." Note the careful  wording:  He did not say "we reaffirm those cases." He only said that the Court would "take” the cases “as given” "for the purposes of deciding this case," leaving open the possibility that the Court would not take those cases as given for the purposes of deciding a future case.

There is more. Justice Kennedy’s opinion noted the mandate of Grutter that judges defer to the educational judgment of university educators regarding the benefits that flow from a diverse student body:

According to Grutter, a university’s “educational judgment that such diversity is essential to its educational mission is one to which we defer.” Grutter concluded that the decision to pursue “the educational benefits that flow from student body diversity,” that the university deems integral to its mission is, in substantial measure, an academic judgment to which some, but not complete, judicial deference is proper under Grutter.

Defenders of affirmative action may seek some solace in this passage. But the opinion of Justice Kennedy then goes on, in a critical section, to describe the issue on which universities should not receive deference — the decision that race-conscious affirmative action is necessary to achieve the goal of a diverse student body:

The university must prove that the means chosen by the university to attain diversity are narrowly tailored to that goal. On this point, the university receives no deference. Grutter made clear that it is for the courts, not for university administrators, to ensure that “[t]he means chosen to accomplish the [government’s] asserted purpose must be specifically and narrowly framed to accomplish that purpose.” True, a court can take account of a university’s experience and expertise in adopting or rejecting certain admissions processes. But, 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.”

Narrow tailoring also requires that the reviewing court verify that it is “necessary” for a university to use race to achieve the educational benefits of diversity.

In short, it will now remain open, in the remand of the case in Fisher, and in any future challenges to affirmative action brought anywhere else, for the opponents of affirmative action to argue that the means employed are not "holistic" within the framework of Grutter, or more critically, may not be necessary, when there are race-neutral alternatives, such as the 10 percent system, that will work just as well.

There are additional clues to where the Court may be heading that may be found in the oral argument in the case, conducted last October, two related phrases rose to prominence in that argument.

The first, “critical mass,” described the ends that Texas sought to achieve through its admissions policies, the achievement of a critical mass of minority students in its student body. That phrase comes directly from Grutter.  The second phrase, “holistic admissions,” describes the means by which this critical mass was to be achieved: the employment of a flexible, individualized examination of each prospective student’s application, in which multiple factors, including racial and ethnic identity, are included in the admissions decision mix.

During the course of the oral argument the more liberal justices on the Court repeatedly sought to frame the issue as whether the existing principles of Grutter were to be displaced simply because Texas had adopted its 10 percent system. Framed this way, these more liberal justices could make a decent case in favor of Texas, for while some additional diversity was generated by the 10 percent rule, it was not overwhelming by any means, they suggested, and Texas might plausibly argue that it still needed to do more. Moreover, as Justice Ginsburg noted, while the 10 percent rule was race-neutral in its surface math, it was not race-neutral in its underlying motivation, for the Texas legislature had adopted it in the pursuit of diversity, as a clever end-run around a federal appeals court ruling that had for a brief window of time prohibited all race-conscious affirmative action in the state. And ironically, as Ginsburg observed, the 10 percent system only worked to enhance diversity because housing patterns and school zones in Texas (as in many places in the country) are so racially segregated that many schools are almost entirely of one race or ethnic group.

As an ideal, the holistic affirmative action admissions program advanced by Texas, by the majority of voices within American higher education, has a certain humanistic beauty that is almost irresistible.  At its best, the system mutes the stigma that has at times been attached to affirmative action, a stigma heavily emphasized by Justice Clarence Thomas in his writings on the issue, in which the subliminal message sent to the minority beneficiaries of race-conscious admissions is, "You really don’t deserve to be here on your own merit, but we are letting you in out of guilt and compassion for past wrongs done to those in your group, and the lingering effects of those wrongs." Holistic affirmative action admissions programs flip this, sending instead the positive message: "You do deserve to be here on your own merit, and that merit includes what your identity and experiences will bring to enrich the collective educational
experience for all on the campus, and in turn what that enriched experience will do for the ultimate betterment of society."

Nonetheless, today’s decision by the Supreme Court, which focuses on whether race-conscious admissions truly remain necessary, was presaged by the skeptical questions from a number of justices in oral argument in the case, suggesting that they may regard "critical mass” as really a "hypocritical mask." These skeptical justices repeatedly challenged Texas and its co-defenders of affirmative action to explain when a critical mass is achieved.

None of the advocates would supply a crisp answer. Donald Verrilli, the solicitor general for the administration of President Obama, gave it a noble try, eloquently defending the pursuit of critical mass with the argument that our national "strength comes from people of different races, different creeds, different cultures, uniting in a commitment to freedom, and to more a perfect union." To enrich the educational experience of students at American universities, to expose them to a variety of fellow students from diverse races, ethnic groups, religions, cultures, nations, or life experiences, there must be enough of each group in the mix to both make the cross-exposure meaningful.  In turn, a critical mass of representation is required to ward off the damage to minority students that might ensue from the tokenism and isolation incident to small numbers.  

The skeptics, however, seemed unmoved by the lofty articulation of the goal and unpersuaded by the logic of its execution. Again, much of what surfaced today in the Court’s formal opinion was presaged during the oral argument.  Chief Justice John Roberts repeatedly asked how the Supreme Court could do its job of deciding whether the pursuit of a critical mass was constitutional if Texas refused to explain how it knew when it had achieved critical mass. Moreover, since Texas relied entirely on an applicant’s  self-description of racial or ethnic identity, how did Texas even know what the identity of its enrolled students were?  If an applicant is 1/8 Hispanic, Roberts asked, did Texas regard it as ethically permissible to check the box “Hispanic” on the application?  What if the student was 1/32 Hispanic? Justice Scalia wanted to know if it was a classroom-by-classroom determination. In a deeply uncomfortable moment, Texas conceded that it did not need to prime the pump to enroll more students of Asian descent, as their numbers were already robust, a point that the skeptics saw as approaching a system of racial spoils. Justice Alito thus asked whether critical mass varied by ethnic group. Why, he asked, did Texas lump together all Asian Americans?  Was Texas confident, he continued, that it had a critical mass of Filipino Americans?  Cambodian Americans?

What the skeptics seemed to be suggesting was that "mass" was indeed a "mask," a euphemism employed to avoid what has long been constitutionally forbidden, the simplistic use of race for race’s sake, a "mirror" conception of equal justice in which, in rough-and-ready terms, critical mass is not deemed achieved until the representation of minorities in institutions such as the University of Texas generally approximates their representation in the polity as a whole. Thus Justice Alito asked pointedly, whether the definition of critical mass in Texas would be different from the definition in neighboring New Mexico.

If the skeptics were troubled by meaning of critical mass, however, they were equally troubled by the meaning of holistic. And here, in many ways, the arguments cut more deeply. The ideal of holistic admissions has an impressive lineage. This was the approach advanced by Harvard University and other Ivy League institutions in the Bakke case. In Grutter, five Justices, led by Justice Sandra Day O’Connor, made the permissibility of holistic admissions the formal law of the land, though Justice O’Connor’s opinion ended with the suggestion that this might only be acceptable for another 25 years.

Despite the beautiful promise of these arguments, however, the skeptics clearly doubted that the universities really mean it, or really mean it the way they say they mean it. No one on the Supreme Court seemed doubtful of the potential benefits of a holistic approach to admissions that did not bringing race or ethnicity into the picture. The doubt was engendered by the suspicion that when universities include race and ethnicity, the holistic ideals become compromised and adulterated by other pressures within the rankings hierarchy of higher education, pressures that push universities toward efforts to get the right additional minority students and the right kind of those minority students. Why did Texas really augment the 10 percent system with its holistic race-conscious admissions program? Was it because it did not get enough minority students from the 10 percent regime, or was it because the students it got under the 10 percent program were not, in the eyes of Texas, good enough?

On this point, in one of the most awkward moments in the oral argument, the justices struggled with what to make of an African-American applicant who was the child of two well-educated, successful and affluent professionals. Should or should not such an applicant be the beneficiary of racial "plus points" in the admissions process? What all the justices surely knew, whatever side they might be on, was that such an applicant is typically perceived as highly desirable by universities, because the applicant helps on the numbers in two ways, improving the both the university’s diversity and academic profiles. When the advocate for Texas suggested that Texas needed such affluent minorities as a diversity counterpoint to the minorities generated by the 10 percent system, which were heavily composed of students from entirely minority-race schools from poorer, less academically elite circumstances, Justice Alito blanched, as if this were a duplicitous betrayal of the blue collar roots of affirmative action, an elitist bait-and-switch. "I thought that the whole purpose of affirmative action," he lamented, "was to help students who come from underprivileged backgrounds."

Tellingly, the issue also troubled Justice Kennedy, who emerged as the author of this week's opinion. He seemed turned off by such unabashed race-consciousness, asserting that for Texas, "what counts is race above all.”  This, Kennedy, claimed, was the necessary conclusion to be drawn from Texas’ answer to Justice Alito’s questions. "You want underprivileged of a certain race and privileged of a certain race," Kennedy observed. "So that's race."

To all these Supreme Court skeptics, the term “holistic” appears to have taken more the hue of universities wanting to have their cake and eat it too. Universities want the highest possible academic credentials, which works to enhance their reputations and rankings, yet they also wanted the highest possible diversity numbers. Adding to the skeptics’ suspicion was the problem of how these holistic reviews, as a practical matter, are really undertaken. Justice Scalia thus inquired, with only thinly disguised facetiousness, how many people a ruling against affirmative action would put out of a job, since Texas must have employed a huge number of people in its admissions office to process all these highly individualized holistic reviews.

We will surely hear alternative narratives emerge on the meaning of this week's ruling. Some will say that it portends that affirmative action is hanging by a thread.  Others may characterize it as affirming the framework adopted in Grutter.  

One point, however, seems clear:  the holistic approach to admissions that most in higher education have embraced for decades is under ever-increasing legal stress. In Grutter, Justice O’Connor’s opinion suggested that the clock may run out on race-conscious admissions after 25 years — or 2028. This week's ruling, at the very least, signals that universities should begin to seriously prepare for a much sooner date.  

Contemplating that possibility, a holistic approach to admissions may be imagined that does not include any injection of consideration of race or ethnicity. A university might adopt an approach to admissions that is “holistic” in the simple sense that it is not single-mindedly driven by the academic numbers, such as test scores, grade point averages, or Advanced Placement courses. Leadership, altruism, civic engagement, public service, passion for social justice, creativity, entrepreneurial spirit, resiliency, drive, ambition, the capacity to overcome adversity, all the polymath possibilities that might comprise true grit, could be included in a student’s evaluation, factors resonant in their connection to our most romantic renditions of the American dream.

And indeed, the vast majority of American universities that employ race-conscious holistic admissions programs claim that race is simply one ingredient spicing this richer bouillabaisse.  For those institutions that really believe that these character traits enhance the quality of a student body, the Constitution of the United States, as now redefined by the Supreme Court, stands as no impediment.  And whatever one’s politics, one’s views of affirmative action, one’s views of the competing narratives explaining Fisher, an admissions system that includes some flexibility to reward grit will be a good thing for higher education and for society, fully resonant with the ever-evolving reinterpretation of the most enduring traditions of the American Dream.

Rod Smolla, a constitutional law scholar, is president of Furman University. He is the author of The Constitution Goes to College: Five Constitutional Ideas That Have Shaped the American University (NYU Press).

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Academic Minute: Evolving Gay Culture

In today’s Academic Minute, Dustin Goltz of DePaul University explains the shifting meaning of “coming out” among different generations within the gay community. Learn more about the Academic Minute here.

Wednesday's Academic Minute linked to the wrong podcast for much of the day. Our apologies. To hear yesterday's podcast about environmental risk from aging sewers, please click here.

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Babson Apologizes to Brandeis for Anti-Semitic Incident

Babson College will today formally apologize to Brandeis University for an anti-Semitic incident in 1978, The Boston Globe reported. When the two institutions competed in a soccer game that year, some Babson players placed a sign in their gym that said "Happy Holocaust," while others wore swastikas to practice and yelled "Holocaust" and anti-Semitic phrases at one another. In addition to apologizing, Babson will work with the Anti-Defamation League to train students to study and oppose anti-Semitism and other forms of bigotry.

 

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Early Colleges positively impact students study says

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OCR: Colleges Must Support Pregnant and Parenting Students

Colleges have special responsibilities to support young parents and pregnant students under Title IX of the Education Amendment of 1972, the U.S. Education Department’s Office for Civil Rights said in a “Dear Colleague” letter Tuesday. The letter is an update and expansion of previous guidance issued on the topic in 1991. The letter cites studies saying that only 2 percent of women who had a child before the age of 18 earned a degree by 30, and notes that Title IX prohibits discrimination of these students in any educational program, including extracurricular activities. OCR sent the letter -- along with a pamphlet of guidelines, strategies and best practices to support pregnant and parenting -- to all colleges.

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New federal designation for institutions that serve Asian-American and Pacific Islander students could significantly aid low-income students in those groups, a study finds --- but funding for those colleges lags.

UT Austin students' reaction to ruling muted

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Supreme Court's decision produces a mixed but muted reaction among students at the University of Texas at Austin, with many expecting a more definitive ruling.

Essay on the Supreme Court ruling on affirmative action

When admissions committees at selective colleges choose from among thousands of applicants, nearly all of whom have the credentials to do the work, they are doing exactly what they are charged to do: assembling a qualified, diverse student body. The Bakke and Grutter Supreme Court rulings sanctioned this approach; common sense dictates it; and no anecdotal horror stories or isolated allegations can change this central fact.

There is no evidence that whites are displaced in the process, and those few who are affected likely have many alternatives, as Abigail Fisher did when she was admitted into Louisiana State University after she failed to get into the University of Texas at Austin. Her grades and class standing did not get her admitted even with two bites at the apple -- she did not qualify for the percent plan (under which top students from Texas high schools are admitted), and she was not admitted under the UT holistic review process. Using Bakke and Grutter reasonably, the surprise is not that the system works fitfully, but that it works so well in light of the current crush of applicants and costs of applying. Bakke's carefully nuanced opinion by Justice Powell has proven surprisingly resilient and supple over the intervening decades, even with the attempts at revisionism by Fifth Circuit judges and unyielding conservative organizations that characterize whites as hapless victims.

Grutter's rule of law ensured that affirmative action remains a vital tool in admissions. As demographic changes occur and historical discriminatory practices are changed, the argument that race preferences in admissions are necessary to combat the vestiges of racial discrimination will likely lose its force. Few legislatures are likely to confess racial prejudice or to acknowledge it in their state agencies.

However, aggrieved Anglo plaintiffs and their organizations will not be appeased and will continue to make the unsuccessful argument that even the slight use of race is unconstitutional.

As one of the responses to Hopwood, in which an appeals court ruled that public universities in Texas could not consider race in admissions, and in light of the enrollment damage evident to its undergraduate programs and professional schools, the Texas Legislature enacted a race-neutral program, the Texas Top Ten Percent Plan, in 1997. This plan allowed all graduates of the state's high schools to attend any public college, provided that the applicant had graduated in the top 10 percent of his or her class. This provision broadened the number of schools that sent students to the state's public colleges, particularly to the University of Texas at Austin, and all internal UT studies and other scholarship have revealed that full-time, first-time freshmen admitted under the Top Ten Percent Plan remained enrolled longer, performed better, and graduated in greater numbers than did their non-plan counterparts.

Indeed, the plan became so successful that it threatened to swamp the Austin campus. As a result, the legislature reluctantly granted an escape valve at UT-Austin to trim back admissions under the percentage plan to the top 7 percent of high school graduates in the state. Since its inception, this plan had no racial component; while it mitigated some of the earlier Hopwood losses, its participants were of all races, predominantly whites, who recently constituted more than half the percent plan admittees, even though whites are less than a third of Texas K-12 enrollments. Even so, in Fisher v. University of Texas, another generation of white applicants sued the university, arguing in a 2008 federal district court case and a 2011 circuit appeal that, with the percentage plan in use, the university should not be permitted to use the tools that Grutter had constitutionalized.

In effect, the suit – the basis for Monday’s Supreme Court ruling – argued that if colleges can find some way to get a little diversity, they need to settle for that, and not attempt to bring greater diversity to campus. Never mind that over half the percent pan admits have been white, in a state where half the schoolchildren are not white. "Critical mass" has to mean something different in New Hampshire than it does in Texas.

Not only were some members of the appeals court distressed that the percent plan had been implemented, but in a special concurrence with the decision rejecting Fisher's suit, Circuit Judge Emilio M. Garza wrote to show his special disdain even for Grutter: "Today, we follow Grutter's lead in finding that the University of Texas's race-conscious admissions program satisfies the court's unique application of strict scrutiny in the university admissions context. I concur in the majority opinion, because, despite my belief that Grutter represents a digression in the course of constitutional law, today's opinion is a faithful, if unfortunate, application of that misstep. The Supreme Court has chosen this erroneous path and only the court can rectify the error. In the meantime, I write separately to underscore this detour from constitutional first principles."

In this round of deciding the constitutionality of Texas public college admissions standards, the circuit was once again calling into question the legitimacy of the Supreme Court's decision-making, as it had done in Hopwood, even as it followed its requirements in this instance. What is extraordinary is that no legal challenge to the percent plan or even to Grutter was on the table. On their own gag reflexes, they choked.

Minorities with real grievances, such as racially profiled Mexican-origin citizens in Arizona, gerrymandered black and Latino voters in Southern states, and even majority educators in Louisville and Seattle who tried to desegregate schools -- these claims are stonewalled and denied by this conservative Supreme Court, but the inadmissible applicant Fisher is encouraged that she was somehow deserving of yet another bite at the apple, even as she was not admitted under her own power and merits. She, like so many before her, is convinced that her inability to be admitted was surely due to a lesser-deserving minority having taken HER place.

Now that whites are a shrinking number and  percentage of the school population and polity, this racial calculus is sure to soar, and whites will aggressively and purposively seek "minority legal protection."

Should Fisher win her case down the road, they will find no safe harbor, and will feel the stinging accusations, that they made it due to special pleading and do not deserve the leg up. For now, with Fisher, the Supreme Court has vacated and remanded the appeals court ruling: "The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity." The Supreme Court ordered the appeals court to reconsider the key holding of Grutter -- that any plan be narrowly tailored. As I had feared, they appear to have misapprehended the percent plan, which is race-neutral and resulted in over half its admits being Anglos, else the case would not still be in play, as UT’s plan is operationally like the Michigan Law School plan, which the Supreme Court backed 10 year ago.

I assisted the late Texas State Rep. Irma Rangel in the drafting of the percent plan, a tremendous success, and it was race-neutral. It is sad that such a plan as operationalized  has occasioned such misunderstanding, even by Justice Ginsburg in her dissent, and given aggrieved Anglo plaintiffs more occasions to assume that if they are not admitted, it must have been due to a lesser-deserving minority taking their place. This did not happen here, and the Circuit should uphold its earlier ruling.

To the extent that race is accounted for in the process, it should be one of many considerations: I have argued that Justice Powell's opinion was the correct route for the Supreme Court to follow when it took up Bakke's progeny, and Grutter had settled that issue for the foreseeable future.

The use of affirmative action in college admissions has been the constitutional law of the land as determined by the U.S. Supreme Court at least since 1978. But having conservatives, and especially federal judges, cursing the darkness does not help matters; one can only ask why conservative organizations continue to litigate settled matters and to protest, methinks, too much. Under traditional rules of civil procedure, before one can go to court, there must be a demonstrable harm to be remedied, and the admissions evidence clearly shows that whites are not harmed by affirmative action in the aggregate.

There are substantial civil penalties for litigants frivolously employing federal courts to bring unwarranted or inappropriate actions, and the jurisprudence of admissions challenges on race -- Bakke in 1978, affirmed by Grutter in 2003, and now Fisher in 2013, should the narrow-tailoring be upheld -- will have been resolved to the point where these sanctions should be leveled at such future claims.

Michael A. Olivas is a professor of law at the University of Houston. This essay is adapted from his new book, Suing Alma Mater: Higher Education and the Courts (Johns Hopkins University Press).

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Hebrew U. Faculty Object to Plan to Add Sex-Segregated Classes

Professors at Hebrew University are objecting to a plan to add some single-sex courses (in which female instructors would not be permitted to teach male students) as part of a plan to attract ultra-Orthodox Jewish students, Haaretz reported. Israel is currently in the midst of a national debate on how to better integrate ultra-Orthodox Jews into society, and how to encourage more of them to get a (secular) higher education and to pursue employment. Some universities are adding gender-segregated classes to make these students more comfortable and there is a plan for Hebrew University to do so. But administrators -- facing widespread faculty opposition last week -- held off on seeking a vote on the idea. Professors say that segregated classes would be illegal, would discriminate against women and violates academic norms.

 

Guesses on Why the Supreme Court Has Taken So Long

Today is another day that the U.S. Supreme Court might rule on a landmark decision on affirmative action in college and university admissions. The affirmative action case is by far the case in this Supreme Court term that was argued the longest ago (back in October) without a ruling yet issued. A hashtag based on the name of the plaintiff #waitingforfisher has turned up on Twitter. Numerous articles have cited various theories about what the delay could mean -- although the authors of those articles typically admit that they are guessing, since the Supreme Court doesn't leak.

One law blog -- Noncuratlex.com -- poked fun at all the impatience by publishing a fake news story in which Chief Justice John Roberts offered the real reason for the delays: "I want to put to rest all of the nutty conspiracy theories that have circulated around the Fisher case," the blog quoted Roberts as telling reporters. "Any speculation that the Court is struggling with drafting the opinion, or opinions, is pure nonsense. The truth behind the delay is far more mundane. As you may have guessed, we’re still waiting for the go-ahead from Madame Zena, the official Court Astrologer."

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