Affirmative action upheld by the Supreme Court

The case was Fisher v University of Texas. The vote was narrow.

- Click here for Scotusblog's page on the case.
- Click here for Oyez's.

Basic info from Oyez:

Question: Does the University of Texas’ use of race as a consideration in the admissions process violate the Equal Protection Clause of the Fourteenth Amendment?

Conclusion: The University of Texas’ use of race as a consideration in the admissions process did not violate the Equal Protection Clause of the Fourteenth Amendment. Justice Anthony M. Kennedy delivered the opinion for the 4-3 majority. The Court held that the University of Texas’ use of race as a factor in the holistic review used to fill the spots remaining after the Top Ten Percent Plan was narrowly tailored to serve a compelling state interest. Previous precedent had established that educational diversity is a compelling interest as long as it is expressed as a concrete and precise goal that is neither a quote of minority students nor an amorphous idea of diversity. In this case, the Court determined that the University of Texas sufficiently expressed a series of concrete goals along with a reasoned explanation for its decision to pursue these goals along with a thoughtful consideration of why previous attempts to achieve the goals had not been successful. The University of Texas’ plan is also narrowly tailored to serve this compelling interest because there are no other available and workable alternatives for doing so.

Commentary:

- How Affirmative Action Won the Day.
- AN UNEXPECTED VICTORY FOR AFFIRMATIVE ACTION.
- How Anthony Kennedy Came Around on Affirmative Action.

From the Washington Monthly: Asian-Americans and Affirmative Action

For out look at civil rights policy - a twist on the use of affirmative action.

- Click here for it.

Affirmative action has survived decades of conservative antagonism, an unfriendly Supreme Court, and attacks by Republican state legislatures, but the institution’s future looks bleaker than ever.

While long a staple of the progressive agenda, race-conscious affirmative action has quickly been relegated to the relative fringes of the liberal platform. While both Hillary Clinton and Bernie Sanders are both supporters, it’s been a non-issue so far in the campaign. But while it’s been mostly missing from the national stage, the frame of the affirmative action debate has also shifted – the rise of Asian-Americans as the country’s anointed “model minority” has helped to disrupt the common understanding of affirmative action as an issue of black versus white.

The question is whether Asian-American achievement – or rather understanding its underlying mechanisms – could hold the key to affirmative action 2.0. New research attempts to answer that question and highlight alternatives to race-conscious affirmative action. There are no easy answers, though, and with universities preferring to maintain statistical rankings rather than foster true diversity, it’s hard to find a practical example of affirmative action innovation. One thing’s for sure: If affirmative action is to continue to live up to its ideal, something needs to change.

From FORA.TV: The Equal Protection Clause Forbids Racial Preferences in State University Admissions

I can't stress the importance of being familiar with the 14th Amendment generally, and the  Equal Protection Clause specifically. It's not a bad idea to be up on the controversies associated with affirmative action either.

- This debate promises to help with both.

From the Texas Tribune: UT to Supreme Court: We Need Affirmative Action

This applies to 2305 and 2306 - civil rights in Texas etc....

- Click here for the article.

The University of Texas at Austin needs to consider race in admissions if it wants a diverse, representative student body, the school told the U.S. Supreme Court 0n Monday in a 70-page brief filed in advance of oral arguments in the case Fisher v. The University of Texas at Austin.

The nation's high court will hear arguments in the case, which could bring an end to affirmative action at UT-Austin, this December.

The school was sued in 2008 by Abigail Fisher, who argued she was denied admission to UT-Austin because she is white. Her case has already reached the Supreme Court once. In that iteration, the court upheld the use of affirmative action nationwide but asked a lower court to scrutinize UT-Austin's policy. The lower court upheld the school's use of race in admissions, and the Supreme Court now is reviewing that ruling.

In Monday’s brief, UT-Austin cites its troubled racial history, noting that a black student wasn’t admitted to the school until 1950. The school also stresses that race is still an issue on campus today. This year, the school noted, UT-Austin became embroiled in a debate about the future of an on-campus statue of Confederate President Jefferson Davis. The statue was eventually removed from its prominent location and will be housed in a U.S. history center instead.

From ScotusBlog: Fisher case on way back to the Court

Affirmative action at the University of Texas is back on the court docket. UT can still still use race in a limited manner, but that might subject to change.

Click here for the article.

Over the dissents of five judges, the full U.S. Court of Appeals for the Fifth Circuit refused on Wednesday to rehear the sequel of the University of Texas affirmative action case, Fisher v. University of Texas at Austin. The order is here. That decision, supported by ten judges, leaves intact a divided three-judge panel ruling upholding some use of race in selecting the university’s incoming freshman classes. The panel ruled after the Supreme Court ordered it to take a new look.

A statement by the organization that has arranged Abigail Fisher’s challenge, indicating that the case will be taken back to the Supreme Court, is here. Ms. Fisher sued the flagship university after being denied admission; she claimed her rejection was due to her race — she is white.

After a Fifth Circuit panel had upheld the university’s first-year admissions program, which made some use of race, the case went to the Supreme Court. The Justices overturned that decision, finding that the university had not given an adequate justification for the role that race had played in the process.

The Fifth Circuit panel upheld the plan again in July, and Ms. Fisher pursued en banc review by the full Fifth Circuit. The majority of ten judges did not explain their refusal to vote for further review. Circuit Judge Emilio M. Garza, who had dissented from the panel decision, wrote a one-page opinion dissenting from the denial of en banc review. He referred mainly to his prior dissent.

He was joined in dissent by Circuit Judges Edith Brown Clement, Edith H. Jones, Priscilla R. Owen, and Jerry E. Smith.

It is doubtful that the new case will reach the Supreme Court in time to be decided in the current Term, even if review is granted. Ms. Fisher has ninety days to file for review.

Diversity as a Compelling State Interest in Public Education

I just stumbled across this law review article that outlines the issue involved in the argument that racial diversity is a compelling state interest that justifies affirmative action, which we've been discussing in 2305 this week.

- Click here for the article.

It was written in 1999, so I'll look for more recent articles - but the background it provides is still useful for us.

From the Volock Conspiracy: Asian-American state senators block proposal to reintroduce race preferences in California

An interesting twist to our discussion of civil rights and affirmative action. A repeal of affirmative action in public education in California has lead to over representation of Asian-Americans in public universities. This has lead to the obvious conflict - based on self-interest for one's racial group - on whether an effort to repeal the repeal should be presented to the voters.

- Click here for the article.

It hits on a question we're discussing in 2305 about whether diversity on a campus is a compelling public purpose that allows for the consideration of race in public education. The article's author is opposed - though I don't he draws the argument out that well here.

Here's a useful bit from the commentary:

. . . if one is looking for proportional representation, or a “University that looks like California,” then one would want to reduce the number of Asians at the most selective University of California campuses, since Asians are sharply overrepresented there. Even if one is looking for things such as “diversity,” the fact remains that, so long as a disproportionately high number of seats is taken by Asians, a disproportionately low number of seats will be taken by members of other racial groups. That’s true not just for blacks and Hispanics but also for non-Hispanic whites at many campuses. For instance, in 2013 non-Hispanic whites made up only 30 percent of non-international UC Berkeley freshmen — or 34 percent if you assume that all the “decline to state” students were white — while East and South Asians made up 48 percent. Non-Hispanic whites make up 39 percent of the California population, while Asians make up 14 percent. Indeed, some backers of race preferences argued during the Prop. 209 debate that having too many Asian students is one of the problems that race preferences are supposed to fix.

. . . If it somehow ends up that Asians make up 80 percent of the students that have the non-race-based predictors UCLA Law School uses for admission, and my own racial group is thus vastly underrepresented, I would have no complaints whatsoever, and wouldn’t think there is any basis to use racial preferences to either reduce the number of Asians or increase the number of whites, blacks, or Hispanics.

I'm curious about the political consequences though. If more middle class and poor whites see the repeal of affirmative action programs as hurting them by expanding opportunities for Asian Americans, might this lead to a backlash? Affirmative action might - ironically and problematically - become favored by whites, and this might be driven to some degree by animosity towards Asian Americans. Racial identity has always played a role in politics. It is unreasonable to assume it will not continue to do so.

The Fifth Circuit Court of Appeals rehears Fisher v UT - strict scrutiny must apply

This past summer the Supreme Court sent this case back to the fifth Circuit and asked them to apply strict scrutiny to the case.

The NYT reports:

An affirmative-action program at the University of Texas at Austin that takes applicants’ race into account was unnecessary because the campus had achieved a “critical mass” of minority students, lawyers for the white applicant who sued the university told a federal appeals court here on Wednesday in a case with high stakes for the future of race-conscious admissions policies at public colleges and universities.

University lawyers denied a critical mass of underrepresented students had been reached. They said the institution was entitled to supplement its race-neutral admissions policies with ones that take race into account to achieve diversity. But the reaction of the appeals judges, who expressed skepticism at times about the manner in which the university applied race-conscious decisions and the university’s abstract definition of “critical mass,” illustrated the complex path for the Texas flagship university, as it tries to show that its admissions program was necessary.

Bert Rein, the lawyer for the white applicant, Abigail Fisher, said the university had no numerical standards to determine when its student body was sufficiently diverse. “They have no metric,” he said. “ ‘We know it when we see it.’ That’s the university’s position.”

The lawyers for Ms. Fisher, the university and minority student groups appeared before the United States Court of Appeals for the Fifth Circuit on Wednesday to sort through a tangle of new legal issues raised by the Supreme Court in June. The Supreme Court sent the case back to the Fifth Circuit, instructing it to apply a greater degree of scrutiny to the university’s race-conscious admissions program.

The decision, while generally upholding the use of race as a factor in the program, jeopardized the future of it at the same time, by instructing courts to use tougher standards and to verify that race-neutral alternatives were not available to the university.

Does a state violate the equal protection clause when it bans affirmative action with a constitutional amendment?

That's the question the court faces in Schuette v. Coalition to Defend Affirmative Action.

Oral arguments were held yesterday.

NPR details the history of this dispute - which involves a previous Supreme Court case.

The U.S. Supreme Court takes up the issue of affirmative action again Tuesday, but this time the question is not whether race may be considered as a factor in college admissions. Instead, this case tests whether voters can ban affirmative action programs through a referendum.

In 2003, the the University of Michigan Law School's affirmative action policy. The next day, opponents of affirmative action launched a referendum campaign to bar such programs, and in 2006, voters overwhelmingly approved a ballot initiative amending the state constitution to ban affirmative action programs in higher education.

Michigan's state colleges and universities promptly abandoned any use of race or ethnicity to promote diversity, and minority enrollment plummeted. In 2012, a federal appeals court ruled that the referendum itself was discriminatory, and the U.S. Supreme Court stepped in to decide the issue.

. . . opponents of the referendum claim that the ballot initiative rigged the system. They note that other state admissions policies are set by the popularly elected boards of regents of the three state universities. Indeed, affirmative action defenders observe that some regent elections have focused on the issue of affirmative action. If that process isn't working, they argue, the state Legislature could give the power to set all admissions policies to another body. Or the Legislature could enact a different system to promote diversity — for instance, guaranteeing admission to students graduating in the top 10 percent of their high school classes.

"The one thing they can't do," says the American Civil Liberties Union's Mark Rosenbaum, "is to take our political process, to take the way that decisions are made with respect to higher education, and say, 'There will be one set of rules for race, which are particularly onerous, and another set of rules for all other admissions policies, including all other preferences.' "

Rosenbaum will tell the justices on Tuesday that passage of the referendum means that the only way for minority groups to reinstate affirmative action programs is to re-amend the state constitution. That task is extremely difficult — and, he asserts, doubly difficult and costly, given that the state is 79 percent white. In contrast, if other Michigan citizens want to change other preferences in university admissions — for example, the preference for the children of alumni — they can lobby the regents.

"They have created a separate and unequal system when it comes to considering racial matters," he says.

Some of the major cases before the SC

A quick look at the principle questions to be raised this term - drawn from the USA Today's preview.

Affirmative Action
- Schuette v Coalition to Defend Affirmative Action
- Question: Does a state constitutional amendment barring racial preferences in public university admissions violate the Equal Protection Clause of the Constitution.

Legislative Prayer
- Town of Greece v Galloway
- Question: Does a town;s policy of having local clergy recite prayers at government meetings violate the First Amendment's establishment clause when nearly all prayers are Christian?

Housing Discrimination
- Mount Holly v Mt. Holly Gardens Citizens in Action
- Question: Is a government policy, such as redeveloping a blighted neighborhood, permitted under the Fair Housing Act of 1968 if it has a disparate impact on racial minorities?

EPA
- EPA v EME Homer City Generation
- Can the federal government supersede states' authority by setting emissions reduction plans for power plants, based in part on pollution that travels to downwind states?

Recess Appointments
- NLRB v Noel Canning
- Can the president use his recess appointment power to sidestep Senate confirmation during intra-session recesses, or when the vacancy predates the recess, or when the Senate is Meeting every three days in pro-forma sessions?

Abortion Buffer Zones
- McCullen v Coakley
- Can a state set up a buffer zone around reproductive health care facilities that perform abortions, on order to separate patients from protesters?

Medical Abortion
- Cline v Oklahoma Coalition for Reproductive Justice
- Can the state limit the administration of abortion-inducing drugs to the protocols specified on their labels, thereby restricting so-call;ed medical abortions?

Health Care Contraception
- Sebelius v. Hobby Lobby Stores
- Can a family owned corporation whose owners oppose abortion refuse to offer health insurance policies that include coverage of contraceptives, as required by President Obama's health care law?

Cell Phones
- Riley v. California
- Can police search the data in a suspect's cellphone during a routine search incident to arrest, without first getting  warrant?

The Supreme Court kicks the can on affirmative action

The Supreme Court issued its decision in Fisher v UT, which was to send it back down to the lower courts and ask them to review the programs more stringently, and specifically to apply strict scrutiny when making that review.

Scotusblog's review in plain english is worth a read - here's a chunk of what it says:

Today a broad majority of the Court reinforced that affirmative action must be strictly reviewed, but it did not outlaw those programs. In an opinion that required only thirteen pages, the Court explained that a university’s use of race must meet a test known as “strict scrutiny.” Under this test, a university’s use of affirmative action will be constitutional only if it is “narrowly tailored.” The Court in Fisher took pains to make clear exactly what this means: courts can no longer simply rubber-stamp a university’s determination that it needs to use affirmative action to have a diverse student body. Instead, courts themselves will need to confirm that the use of race is “necessary” – that is, that there is no other realistic alternative that does not use race that would also create a diverse student body. Because the lower court had not done so, the Court sent the case back for it to determine whether the university could make this showing.

And a bit more from the NYT:

The admissions system that Ms. Fisher challenged is idiosyncratic. Three-quarters of applicants from Texas are admitted under a program that guarantees admission to the top students in every high school in the state. (Almost everyone calls this the Top 10 program, though the percentage cutoff can vary by year. Ms. Fisher just missed the cutoff.)

The remaining Texas students and those from elsewhere are considered under standards that take account of academic achievement and other factors, including race and ethnicity. Many colleges and universities admit all of their students on such “holistic” grounds. The question in the case decided Monday was whether Texas was entitled to supplement its race-neutral Top 10 program with a race-conscious holistic one.

The Top 10 program has produced significant racial and ethnic diversity. In recent years, about 25 percent of freshmen who enrolled under the program were Hispanic, and 6 percent were black. Thirty-eight percent of Texans are Hispanic, and 12 percent are black.

Monday’s decision let stand, for now, a longstanding but fragile societal compromise, one that forbids quotas but allows using race as one factor among many in the admissions process. That was the essential message of the court’s two earlier major encounters with the issue, University of California v. Bakke, in 1978, and Grutter v. Bollinger, in 2003.

Civil rights cases at the Supreme Court

Some things for 2305 students to chew on for this week's look at civil rights. The Supreme Court - as always - is looking at a handful of cases that force it to consider how the equal protection clause of the constitution applies to current disputes. Here's a rundown of recent cases, the links almost always will take you to SCOTUS blog. I'll post related news items separately.

United States v Windsor.

Issue: (1) Whether Section 3 of the Defense of Marriage Act (DOMA) violates the Fifth Amendment's guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State; (2) whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and (3) whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case.

Hollingsworth v. Perry.

Issue: (1) Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman; and (2) whether petitioners have standing under Article III, § 2 of the Constitution in this case.

Fisher v. University of Texas at Austin.

Issue: Whether this Court’s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Grutter v. Bollinger, permit the University of Texas at Austin’s use of race in undergraduate admissions decisions. (Kagan, J., recused)

Was the 14th Amendment meant to be color-blind?

Here's a great argument that it was not, and that legislation passed around the time the 14th Amendment was ratified - the 1866 Freedmen's Bureau Act - explicitly intended to provide extra opportunities to the recently freed slaves. This might potentially buttress arguments in favor of affirmative action today.

The author points out that this is an originalist argument, which conservatives tend to employ in other areas, but not here. The author thinks the conservatives are mimicking the liberal tendency to read the Constitution in moral terms, which allows for flexibility in interpretation.

Fisher v UT

The NYT provides background on the affirmative action case argued today before the Supreme Court. As with many other cases, Anthony Kennedy is projected to be the key vote:

The questioning was exceptionally sharp, but the member of the court who probably holds the decisive vote, Justice Anthony M. Kennedy, tipped his hand only a little, asking a few questions that indicated discomfort with at least some race-conscious admissions programs. He told a lawyer for the University of Texas at Austin, which was challenged over its policies, that he was uncomfortable with its efforts to attract privileged minorities.

“What you’re saying,” Justice Kennedy said, “is what counts is race above all.”

He asked a lawyer for Abigail Fisher, a white woman who was denied admission to the university, whether the modest racial preferences used by the university crossed a constitutional line. Then he proposed an answer to his own question.

“Are you saying that you shouldn’t impose this hurt, this injury, for so little benefit?” he asked.

Justice Sonia Sotomayor summarized the central question in the case. “At what point — when — do we stop deferring to the university’s judgment that race is still necessary?” she asked. “That’s the bottom line of this case.”
I highly recommend the following post in ScotusBlog which contains complete info on the case.

Fisher v. University of Texas

The Supreme Court has agreed to hear another case involving affirmative action at the University of Texas. The case is Fisher v. University of Texas and concerns the factors the school takes into consideration in admitting the 19% of students who are not enrolled because they graduated in the top 10% of their class.

We will likely discuss this when we hit both civil rights and education policy.

- Wikipedia: Fisher v. University of Texas
- ScotusBlog: Fisher v. University of Texas
- The Other Big Supreme Court Case.

The Supreme Court will hear a challenge to UT's affirmative action program

You can find detail from the NYT here, and the Washington Post here. Some helpful text:

The new case, Fisher v. University of Texas, No. 11-345, was brought by Abigail Fisher, a white student who says the University of Texas denied her admission because of her race. The case has idiosyncrasies that may limit its reach, but it also has the potential to eliminate diversity as a rationale sufficient to justify any use of race in admission decisions — the rationale the court endorsed in the Grutter decision. Diversity, Justice Sandra Day O’Connor wrote, encourages lively classroom discussions, fosters cross-racial harmony and cultivates leaders seen as legitimate. But critics say there is only a weak link between racial and academic diversity.

The Grutter decision allowed but did not require states to take account of race in admissions. Several states, including California and Michigan, forbid the practice, and public universities in those states have seen a drop in minority admissions. In other states and at private institutions, officials generally look to race and ethnicity as one factor among many, leading to the admission of significantly more black and Hispanic students than basing the decisions strictly on test scores and grades would.

- Click here for commentary from the Volokh Conspiracy.
- And from ScotusBlog, plus the relevant documents associated with the case.

2301s should expect a written question about this when we start out discussion of civil rights.

Reverse Discrimination Ruling

From the NYT:

The Supreme Court ruled on Monday, in a case with enormous implications for workplaces across the country, that white firefighters in New Haven suffered unfair discrimination because of their race when the city scrapped the results of a promotional exam.

“The city’s action in discarding the tests violated Title VII,” the court held in a 5-to-4 decision, referring to a section of the Civil Rights Act of 1964. The majority said the city’s fundamental arguments were “blatantly contradicted by the record.”

Monday’s decision in Ricci v. DeStefano, No. 07-1428, came on the last day of the court’s term and was one of the most closely watched discrimination cases in years. The ruling is sure to be closely studied by personnel departments and their lawyers for indications of how far employers can go, and under what circumstances, in considering race in decisions on hiring and promotion.

Ricci v. DeStefano and Sotomayor

Ricci v. DeStefano is the official name of the New Haven firefighters case which some have used to determine Sotomayor's views on affirmative action.

Here are few sites where you can get accurate info on the case:

- ScotusWiki - the docket.
- The oral argument before the Supreme Court.
- Scotus Blog - argument preview.
- Scotus Blog - argument recap.
- Background from the CSM.
- A WSJ story with links to audio from the appellate case.

Sotomayor, as an appellate court judge, voted to uphold the trial court's decision. Opponents have used this to brand her a judicial activist. Supporters argue that the decision was narrowly tailored to comply with the law, and so was an example of judicial restraint. Pick your poison.