Supreme Court and Affirmative Action Ruling

In a surprise outcome, the U.S. Supreme Court ruled 7-1 on Monday that a lower court failed to properly apply the proper legal standard to the race-conscious admissions program at the University of Texas at Austin.

The court threw out a ruling by the U.S. Court of Appeals for the 5th Circuit, in New Orleans, that upheld the flagship UT campus’s consideration of race in undergraduate admissions.

Justice Anthony M. Kennedy said the lower court had failed to hold the university to the demanding burden of “strict scrutiny” as articulated in the Supreme Court’s landmark decisions on affirmative action in education.

The 5th Circuit presumed that the university had acted it good faith and thus showed deference to the school, a standard that was at odds with the requirement under the 2003 case of Grutter v. Bollinger that “all racial classifcations imposed by government must be analyzed by a reviewing court under strict scrutiny.”

“Strict scrutiny does not permit a court to accept a school’s assertion that its admissions process uses race in a permissible way without a court giving close analysis to the evidence of how the process works in practice,” Justice Kennedy wrote for the court in Fisher v. University of Texas at Austin (Case No. 11-345).

Under strict scrutiny, a government racial classification must meet a compelling governmental interest and be narrowly tailored to achieve that interest.

His opinion was joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas, Stephen G. Breyer, Samuel A. Alito Jr., and Sonia Sotomayor. Justice Elena Kagan did not participate in the case because she had presumably worked on it while she was U.S. solicitor general.

Justice Ruth Bader Ginsburg read part of her lone dissent from the bench.

“In my view, the courts below adhered to this court’s pathmarking decisions and there is no need for a second look,” she said. “Like so many educational institutions across the nation, the University of Texas modeled its admissions plan after the law-school policy approved in Grutter v. Bollinger and the Harvard plan referenced as exemplary in Justice [Lewis F.] Powell’s opinion in Regents of the University of California v. Bakke.”

Justice Kennedy cited language from the Grutter opinion by then-Justice Sandra Day O’Connor, who was in the courtroom on Monday.

“Strict scrutiny must not be ‘strict in theory, but fatal in fact,'” Kennedy said, in reference to language O’Connor used in Grutter. “But the opposite is also true. Strict scrutiny must not be strict in theory but feeble in fact.”

“In order for judicial review to be meaningful,” Kennedy continued, “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.”

The case involves Abigail Fisher, a white applicant from Sugar Land, Texas, who was denied admission to the University of Texas at Austin in 2008 under the university’s “holistic review” program.

In a statement after the court’s decision on Monday, Fisher said: “I am grateful to the justices for moving the nation closer to the day when a student’s race isn’t used at all in college admissions.”

The university takes race into account for the roughly one-quarter of places in UT-Austin’s entering freshman class not filled by the “Top Ten” plan—the Texas law that guarantees admission to high school students who finish in the top 10 percent of their graduating classes.

Lawyers for Ms. Fisher argued that except for the consideration of race, she would have been admitted. They called for the race-conscious Texas program to be struck down under the 14th Amendment’s equal-protection clause because it fails the requirement for a narrowly tailored race-conscious program set forth in the Supreme Court’s 2003 decision in Grutter.

That 5-4 decision involved the University of Michigan law school, and the majority opinion by then-Justice Sandra Day O’Connor expressed a desire for all use of affirmative action in education to end within 25 years.

In a statement by the Project on Fair Representation, the group that backed Fisher’s suit, project founder Edward Blum said, “The Supreme Court has established exceptionally high hurdles for the Univ. of Texas and other universities and colleges to overcome if they intend to continue using race preferences in their admissions policies. It is unlikely that most institutions will be able to overcome these hurdles. This opinion will compel the Fifth Circuit to strike down UT’s current use of race and ethnicity.”

The University of Texas argued that its selectivity has been hindered by the rigidity of the Top Ten plan, and that its use of race is designed to bolster racial diversity in a broad sense, including within minority groups, such as by attracting better-credentialed black and Hispanic students than under the automatic plan.

Black and Hispanic students admitted through the holistic program, such as “the African-American or Hispanic child of successful professionals in Dallas,” have “great potential for serving as a ‘bridge’ in promoting cross-racial understanding, as well as in breaking down racial stereotypes,” the university said in its main Supreme Court brief.

Reacting to the Supreme Court’s decision on Monday, UT-Austin President Bill Powers said he was encouraged by the ruling and that the university would continue to defend its policy.

“We remain committed to assembling a student body at the University of Texas at Austin that provides the educational benefits of diversity on campus while respecting the rights of all students and acting within the constitutional framework established by the court,” Powers said in a prepared statement.

Many K-12 groups, including the National School Boards Association and Teach For America, along with the higher education community in general, took positions in support of the university.

A joint brief by the College Board, the NSBA, and several other K-12 groups argued that racial diversity “has emerged as central to our nation’s overarching goals associated with educational excellence.”

Francisco Negron, the general counsel of the NSBA, said Monday that he and other K-12 advocates we’re heartened by the decision.

“I think there is some good law here,” said Negron. “Justice Kennedy is coming right out and saying Grutter is still good law and that courts have to be deferential about schools using diversity.”

He said Kennedy’s language on narrow tailoring was in line with his concurrence in the 2007 decision in Parents Involved in Community Schools v. Seattle School District, when the high court sharply curtailed the permissible uses of race in K-12 education.

“He’s saying race neutrality should be part of the strict scrutiny analyis,” which is what Kennedy stressed in the Seattle concurrence, Negron said.

A much smaller number of organizations, such as the Asian American Legal Foundation and the Pacific Legal Foundation, filed briefs backing Ms. Fisher.

Source: Education Week /Mark Walsh 

From Affirmative Action to Diversity

From affirmative action to diversity

Sometime in the new millennium, “global warming” evolved into “climate change.” Amid growing controversies over the planet’s past temperatures, Al Gore and other activists understood that human-induced “climate change” could better explain almost any weather extremity — droughts or floods, too much heat or cold, hurricanes and tornadoes.

Similar verbal gymnastics have gradually turned “affirmative action” into “diversity” — a word ambiguous enough to avoid the innate contradictions of a liberal society affirming illiberal racial preferencing.

In an increasingly multiracial society, it has grown hard to determine the racial ancestry of millions of minorities. Is someone who is ostensibly one-half Native American or African-American classified as a minority eligible for special consideration in hiring or college admission, while someone one-quarter or one-eighth is not?

How exactly does affirmative action adjudicate our precise ethnic identities these days? These are not illiberal questions — given Massachusetts Sen. Elizabeth Warren’s past claims of being Native American to find advantage in her academic career.

Aside from the increasing difficulty of determining the ancestry of multiracial, multiethnic and intermarried Americans, what exactly is the justification for affirmative action’s ethnic preferences in hiring or admission — historical grievance, current underrepresentation due to discrimination, or both?

Are the children of President Barack Obama or Attorney General Eric Holder more in need of help than the offspring of first-generation immigrants from the Punjab or Cambodia? If non-white ancestry no longer offers an accurate assessment of ongoing discrimination, is affirmative action justified by a legacy of historical bias or contemporary ethnic underrepresentation?

Does a recent arrival from Oaxaca who fled the racism and poverty of Mexico warrant special compensation upon arrival in the United States? And if so, when? A day, a month, a year or a decade after crossing the border? How about a Chilean, Korean or Iraqi immigrant? Should particular coveted employment match the nation’s racial composition — jobs on the faculty, but not jobs in the NBA or in the Postal Service?

How do we fairly allocate compensation for past collective sins against a bygone generation? Slavery, Jim Crow, internment of Japanese-Americans, racially exclusionary immigration laws and the denial of U.S. admission to Jews fleeing the Holocaust: All were reprehensible; but it is difficult to know the degree to which these injustices still distort the career paths of individual Americans, or who still alive is to blame.

In 2009, the University of California system changed its admissions policy allegedly to curtail admission to Asian-Americans. Such anti-affirmative action arose not because UC was a racist institution, but because as an applicant group, Asian-Americans were outperforming most other ethnic groups, in numbers disproportionate to the general population.

In other words, in the manner that the Ivy League turned away qualified Jews in the 1920s and ’30s, so some university administrators apparently thought that engineering a campus “to look like America” was more important than simply admitting those with the strongest academic achievement.

Affirmative action — fossilized for a half-century — also made few allowances for class. Asian-Americans, for example, have higher per-capita incomes than Americans as a whole. Were affluent minority individuals eligible for affirmative action?

Will the children of multimillionaire Tiger Woods — or of Jay-Z and Beyoncé — qualify for special consideration on the theory that statistical underrepresentation in some fields or racial pedigrees will make their lives more challenging than the lives of poor white children in rural Pennsylvania or first-generation Arab-Americans in Dearborn, Mich.?

If ossified racial preferences don’t work in 21st century multiracial America, then the generalized idea of “diversity” — just picking and choosing people without any rationale other than ensuring lots of different races and ethnic groups — offers a better defense of extending preferences in lieu of strictly meritocratic criteria.

Yet diversity no more alleviates the problem of bias than does climate change end controversy over global warming. We really do not mean “diversity” in the widest sense of the word. No Ivy League law school is worried that its faculty profile is disproportionately 90 percent liberal, or lacks fundamentalist Christians commensurate with their numbers in the general population.

The idea of diversity, racial and otherwise, is deeply embedded in politics. President George H.W. Bush was not especially lauded for appointing an African-American Supreme Court justice, Clarence Thomas, apparently because Thomas was considered conservative. Liberal Attorney General Eric Holder was seen by the media as a genuinely diverse appointment in a way that a conservative predecessor, Alberto Gonzales, was not.

Like Prohibition, affirmative action and then diversity were originally noble efforts that were doomed — largely by their own illiberal contradictions of using present and future racial discrimination to atone for past racial discrimination.

It is well past time to move on and to see people as just people.

Source: The Chicago Tribune/ Victor Davis Hanson (Victor Davis Hanson is a classicist and historian at the Hoover Institution, Stanford University. His new book, “The Savior Generals,” will appear this spring from Bloomsbury Press. You can reach him by e-mailing

Justices Weigh Race in Admissions


 Justices Weigh Race in Admissions

Conservatives on the U.S. Supreme Court came out aggressively today against the race-conscious admissions plan at the University of Texas at Austin, while liberals raised jurisdictional issues and defended affirmative action.

Somewhere in the middle was Justice Anthony M. Kennedy, who asked several questions that appeared skeptical of the plan.

Kennedy seemed to be agreeing with Bert W. Rein, the Washington lawyer representing the rejected white applicant who is challenging the Texas plan, when he said, “Are you saying that you shouldn’t impose this hurt, or this injury, generally, for so little benefit?”

Later, he pressed Gregory G. Garre, the lawyer defending the university, about whether a stated desire to admit racial minorities of diverse socioeconomic levels meant that race was the central factor.

“What you’re saying is that what counts is race above all,” Kennedy said to Garre during the arguments in Fisher v. University of Texas at Austin (Case No. 11-345). “You want underprivileged of a certain race and privileged of a certain race. So that’s race.”
The court’s most conservative members of the court were even more direct.

“What is the critical mass of African-Americans and Hispanics that you are working toward?”
Chief Justice John G. Roberts Jr. skeptically asked Garre, who said the university had no fixed goals for its “holistic review” plan, which sometimes considers race for spots in the freshman class not filled by the state’s Top Ten Percent plan. That plan guarantees admission to students who finish at the top of their high school classes, and fills 75 percent of the entering class.
Justice Samuel A. Alito Jr. criticized the university’s desire to admit African-American students from suburban schools who missed the Ten Percent Plan cutoff.

“I though the whole purpose of affirmative action was to help students who come from underprivileged backgrounds,” Alito said. “But you make a very different argument that I don’t think I’ve ever seen before.”

Alito questioned why Texas seems to want to give a “leg up” to African-American and Hispanic applicants of “privileged backgrounds,” against “let’s say, an Asian or a white applicant whose parents are absolutely average in terms of education and income.”

Garre said race-neutral alternatives like the Top Ten Percent plan “may get you diversity that looks okay on paper, but it doesn’t guarantee you diversity that produces educational benefits on campus.”

U.S. Solicitor General Donald B. Verrilli Jr., representing President Barack Obama’s administration, also defended the Texas plan and the continued use of affirmative action by colleges nationwide.

“I think it is important, your honors, not just to the government, but to the country, that our universities have the flexibility to shape their environments and their educational experience to make a reality of the principle … that our strength comes from people of different races, different creeds, different cultures, uniting in a commitment to freedom, and to more a perfect union.”

The court’s participating liberal members—Justice Elena Kagan is recused—suggested the Texas plan met the requirements of the court’s 2003 decision in Grutter v. Bollinger, which upheld the limited use of race in an individualized admissions process at the University of Michigan Law School.

“Are you asking us to overrule Grutter?” Justice Stephen G. Breyer asked Rein, as he referenced that decision’s suggestion that affirmative action in college admissions would be unnecessary within 25 years of 2003. “I know that time flies, but only nine of those years have passed.”

Rein said Abigail Fisher, the white student who was denied admission under the Texas plan in 2008, was not arguing for Grutter to be overruled. Rather, the Texas plan did not meet that decision’s test for a narrowly tailored use of race only when race-neutral alternatives had been tried.

“Race should have been a last resort,” Rein said. “It was a first resort.”

Justice Ruth Bader Ginsburg said the Texas plan was “certainly no more aggressive” in its use of race “than the one in Grutter. It’s more, in fact, more modest.”

Because a lower court upheld the Texas plan, the court’s four conservatives would have to attract at least one more vote, most likely Kennedy’s, to strike down the plan. If Kennedy were to join with Ginsburg, Breyer, and Sonia Sotomayor, a 4-4 tie would uphold the lower court with no national precedent.

Justices Ginsburg and Sotomayor raised concerns about whether Fisher had proper legal standing and related jurisdictional issues. Because she is no longer seeking admission to UT-Austin, Fisher is now seeking a return of her $100 admissions fee, which her lawyer said was enough to keep her case alive. The jurisdictional issues were raised when Fisher appealed to the high court, so they came as no surprise to the justices. And conservative justices such as Antonin Scalia suggested that there were no procedural bars to the court deciding the merits of the case.

“She had to pay and admissions for for a process in which she was not treated fairly,” he said.
Present at Wednesday’s arguments were Fisher, a soft-spoken 22-year-old who just graduated from Louisiana State University, as well as William Powers, the president of the UT-Austin campus.

About 15 minutes into the argument, retired Justice Sandra Day O’Connor arrived to take a prominent seat in the court’s VIP section. She listened intently as the justices debated the fate of the 2003 Grutter decision, of which she was the author.

Photo: Abigail Fisher, who sued the University of Texas, walks outside the Supreme Court in Washington on Wednesday. The Supreme Court is taking up a challenge to a University of Texas program that considers race in some college admissions. The case could produce new limits on affirmative action at universities, or roll it back entirely. 
Source: Susan Walsh/AP