President Kennedy celebrates signing Executive Order 10925 in 1961 to establish the Committee on Equal Employment Opportunity
Racial policies in college admissions are set to face the judgement of the Supreme Court. Together with health care, immigration and political redistricting also under review, this is certainly shaping up to be a big year for politics and the Supreme Court.
As we reported at the beginning of this Supreme Court term, affirmative action is a sensitive subject with roots in the Civil Rights era: Kennedy’s 1961 Committee on Equal Employment Opportunity and the 1964 Civil Rights Act.
Challenging the original intention of the laws, the complaint featured two white students turned down by the University of Texas — one of whom has since dropped out of the case. The central accusation is that higher education institutions wrongly use race to favor minorities at the expense of other Americans.
The University of Texas currently uses a two-pronged approach to admissions.
First: the Top Ten Percent rule, where incoming freshmen are admitted because they are among the top 10% of their high school classes. Plaintiff Abigail Fisher did not fall into this category. Second: University of Texas resumed considering race, after a 2003 Supreme Court ruling upholding affirmative actions admissions, starting with its 2005 entering class.
At issue, therefore, is what happens to the places not filled by the Top Ten Percent.
The University says they do not use quotas (already rejected by the Supreme Court), but instead favors a broader approach to enrollment, with an eye towards diversity of the student body. Implicitly, the suggestion is that affirmative action is required to achieve this diversity.
From the Associated Press:
Before adding race back into the mix, Texas’ student body was 21 percent African-American and Hispanic, according to court papers. By 2007, the year before Fisher filed her lawsuit, African-Americans and Hispanics accounted for more than a quarter of the entering freshman class.
Not so says Fisher. Her suit claims that the Top Ten Percent law was working to increase diversity, and that minority enrollment was higher than it had been under the earlier race-conscious system.
The Project on Fair Representation, opposing the use of race in public policy, has helped the Fisher pay her legal bills:
“This case presents the Court with an opportunity to clarify the boundaries of race preferences in higher education or even reconsider whether race should be permitted at all under the Constitution’s guarantee of equal protection,” said Edward Blum, the group’s director.
An opportunity indeed. Much has changed since 2003 when the court last looked at affirmative action in the 5-4 Grutter vs. Bollinger decision. For one, Justice Alito is more hostile to affirmative action than his predecessor (and majority author) Justice O’Conner. In addition, the left-leaning Justice Kagan will not participate in the case as a result of the Justice Department’s involvement in the lower courts while she served as the Obama administration’s solicitor general.
With a more conservative court, a reversal of the 2003 decision is not unlikely. On top of this, a precedent moving in the same direction is the 2007 5-4 ruling prohibiting public schools from assigning students based on race to achieve classroom diversity, in Meredith v. Jefferson County Board of Education.
Affirmative action programs across the nation are at stake in this case. As a result of this, and the growing inequality in the country, we expect further discussion of affirmative action, racial diversity, the melting-pot approach to assimilation and how much we have (or have not) achieved as a society since 1964.
Related articles
- High Court to Hear College Affirmative-Action Case (online.wsj.com)
- Justices will review racial preference for college (hosted.ap.org)
- Affirmative Action — Could Justice Alito’s Vote Change the Game? (abcnews.go.com)
- First Monday in October Brings Epic Legal Cases to Supreme Court (legallyeasy.rocketlawyer.com)
