Is Affirmative Action on the Way Out?

The U.S. Supreme Court is currently deliberating on a case which will have vast implications for years to come, Fisher v. the University of Texas at Austin. The case involves a white woman who is alleging that the University’s acceptance process discriminated against her based on her race, in violation of the 14th Amendment, by giving preferential treatment to minority races.

It should be noted that Justice Elena Kagan has recused herself from the case because she had worked on the case prior to her ascension to the Supreme Court in her job as Solicitor General. This leaves open the possibility of a 4-4 tie, which would allow the University’s policy to stand while setting no precedent.

The case relies on the precedent set in 2003 by Grutter v. Bollinger which affirmed that a quota system designed for racial balancing was unconstitutional, but a university may consider race in obtaining a “critical mass” of student diversity. What constitutes such a “critical mass” has not been defined, and the validity of the metric has come under fire from conservative judges, such as Chief Justice John Roberts. In questioning Roberts said, “… you won’t tell me what the critical mass is. How am I supposed to do the job that our precedents say I should do?”

In Grutter, the court indicated that race could be considered in determining admission, but only if it was “narrowly tailored” and furthered a “compelling interest.” The interest that was deemed compelling in the case was diversity on campus, which was seen to further the cause of education. Whether this interest is upheld and is narrowly tailored in the case of Fisher remains to be seen.

As for the jury, public opinion is sharply divided along racial lines, according to a poll by The Christian Science Monitor. Among all people in the U.S. between 18 and 25 years old, 47% oppose affirmative action programs to redress past discrimination. However, 75% of Black and 63% of Hispanic young people support it.

Another case has been accepted by the Supreme Court on the issue, this one involving the constitutionality of a Michigan law banning affirmative action in college admissions. The case, Schuette v. Michigan Coalition to Defend Affirmative Action, is surprising considering the court has not yet ruled on Fisher v. Texas. The 6th U.S. Circuit Court of Appeals in Cincinnati held Proposition 2, which bars affirmative action in public university admissions, is unconstitutional. A similar measure in California (1996 Proposition 209) was upheld by the California Supreme Court and the Ninth U.S. Circuit Court of Appeals in San Francisco.

Additional Resources

SCOTUS, Fisher v. University of Texas at Austin: www.scotusblog.com/case-files/cases/fisher-v-university-of-texas-at-austin/

The New York Times, Affirmative Action Ban in Michigan Is Rejected: http://www.nytimes.com/2012/11/16/education/michigans-affirmative-action-ban-is-ruled-unconstitutional.html?_r=0

Cornell University Law School, The Fourteenth Amendment Annotated: http://www.law.cornell.edu/anncon/html/amdt14a_user.html

Forbes, Michigan Affirmative-Action Ruling a Short-Lived Fight Against the Tide: http://www.forbes.com/sites/danielfisher/2012/11/16/michigan-affirmative-action-ruling-a-short-lived-fight-against-the-tide/

Cornell University Law School, Grutter V. Bollinger: http://www.law.cornell.edu/supct/html/02-241.ZO.html

The Huffington Post, Students Split on Affirmative Action for College Admissions: http://www.huffingtonpost.com/2012/10/05/affirmative-action-fisher-university-of-texas-at-austin_n_1942720.html

Cornell University Law School, Parents Involved in Community Schools v. Seattle School Dist. No. 1: http://www.law.cornell.edu/supct/html/05-908.ZS.html

The Wall Street Journal, Justices Weigh Race in College Admissions: http://online.wsj.com/article/SB10001424127887324789504578382293504702844.html?mod=WSJ_hps_sections_news#articleTabs%3Darticle

U.S. Court of Appeals, Coalition to Defend Affirmative Action v. Schuette: http://www.ca6.uscourts.gov/opinions.pdf/12a0386p-06.pdf

 

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