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Showing posts with label affirmative action. Show all posts
Showing posts with label affirmative action. Show all posts

Monday, June 24, 2013

GUEST BLOG: Affirmative action lives to fight another day

By William Yeomans, 
Fellow in Law and Government at American University Washington College of Law

The long awaited decision in Fisher v. University of Texas emerged from the Supreme Court today with a reassuring whimper.  The Court’s 7-1 decision (Justice Kagan was recused) leaves the law of affirmative action unchanged and, importantly, reaffirms that its prior decisions allowing consideration of race in university admissions remain good law.  Only Justice Ginsburg dissented from the majority’s holding that the lower courts had not sufficiently applied strict scrutiny.  She argued, correctly, that the University’s consideration of race was appropriate.

William Yeomans
The University’s undergraduate admissions program sought to create a diverse student body in two ways.  First, it admitted all applicants who finished in the top ten percent of their high school classes.  This program was adopted after a 1996 decision by the 5th Circuit Court of Appeals rejected the notion that race could be considered as a factor in achieving a diverse student body.  Before that decision was superseded by the Supreme Court’s 2003 decision in Grutter v. Bollinger, Texas adopted its ten percent plan, knowing that taking the top students from the state’s segregated schools would increase diversity.  To fill the remaining 20 percent of the places for the incoming class, the University took into account a variety of factors, such as grades, SAT scores, socio-economic measures, legacy, and race.  The Fisher case challenged the use of race in this second pool of applicants.

The court reaffirmed that it is appropriate for universities to take race into account to achieve a diverse educational environment.  It emphasized, however, that the use of race must be narrowly tailored and found fault in the lower court’s reliance on the “good faith” of the university in determining that there were no adequate race-neutral means of achieving comparable diversity.  Importantly, rather than reverse and hold that the university could not consider race, the Court merely sent the case back to the 5th Circuit to revisit the availability of race-neutral alternatives.  Theoretically, the lower court is free to affirm its earlier holding.

Because the case was decided on motions for summary judgment, there was no trial for the development of facts.  The availability of race-neutral alternatives is an issue of fact.  The 5th Circuit, therefore, can credibly remand the case to the district court for development of the record on the issue, including the taking of testimony on the effectiveness of alternatives.  The district court’s decision could then be appealed to the 5th Circuit and could eventually return – in the distant future – to the Supreme Court.

The case was argued in October.  The issuance of the decision only today reflects the deep disagreement among the Justices over the issue of affirmative action.  Justices Scalia and Thomas wrote separately to make clear that they joined the majority’s opinion only because Fisher did not urge the Court to overrule Grutter and disallow consideration of race altogether.  Based on past decisions, it is likely that Chief Justice Roberts and Justice Alito share that view.  Presumably, they had hoped to get Justice Kennedy to join them, but he held fast to his repeated refusal to take race off the table entirely.  Unfortunately, he also held to his pattern of never approving a program that considered race.

The decision – even in its compromised form – highlights how misguided the Court’s jurisprudence on inclusive racial classifications has become.  The opinion is filled with rhetoric about the evils of considering race, regardless of the purpose.  Helpfully, Justice Ginsburg pointed out that the Court had no occasion to address the distinction between racial classifications that separate and those that are inclusive.

By contrast, Justice Thomas, in his concurrence, was incapable of distinguishing between the Jim Crow exclusion of African Americans from public schools and the University of Texas’s program to increase diversity.  According to Thomas, “every time the government . . . makes race relevant to the provision of burdens or benefits, it demeans us all.”  In reality, of course, many people, including Justice Thomas, have benefitted from appropriate consciousness of race and some of them have made our society a far better place because of it.  It is essential that the Court never gets a fifth Justice who rejects that view.

In the meantime, it will be incumbent on university administrators to continue the push to create diverse institutions that will move us toward a more just, inclusive and productive society.  Today’s decision should not slow that effort.

William Yeomans is a Fellow in Law and Government at American University's Washington College of Law.

Thursday, December 6, 2012

Join us tonight – in person or online – for A Conversation with Jeffrey Toobin

Jeffrey Toobin
The current term of the U.S. Supreme Court is just over two months old, and already the Court has heard arguments on affirmative action inhigher education and accepted a case challenging a key provision of the VotingRights Act.  Tomorrow the Court may decide which, if any, gay rights cases it will hear.

Concerning the latter, SCOTUSblog’s Tom Goldstein has written that “I have never before seen cases that I believed would be discussed two hundred years from now.”

So there is no better time than tonight – at 6:30 p.m. to be precise -  to bring together four leading experts to discuss the Supreme Court and the justices.  That’s just what Alliance for Justice has done.

AFJ president Nan Aron will lead “A Conversation with Jeffrey Toobin,” legal analyst for CNN and The New Yorker and author of The Oath: The Obama White House and the Supreme Court.  They will be joined by Emily Bazelon, senior editor of Slate and Prof. Kenji Yoshino of New York University School of Law.

If you can’t be at the event in New York, you can still be a part of it.  We’re live streaming  from our homepage and hosting a discussion on our Facebook page – where you can add your own comments.  We might use some of them when we report on the event back here on Friday.  You also can take part in the discussion via Twitter (#AFJustice).

So please join in the conversation tonight.

Thursday, October 18, 2012

Separating truth from truthiness in Fisher v. University of Texas

We are pleased to present in-depth analysis of Fisher v. University of Texas, the case about affirmative action in higher education heard this week by the Supreme Court, from Stephen Colbert ...

The Colbert ReportMon - Thurs 11:30pm / 10:30c
Affirmative Action Supreme Court Case
Colbert Report Full EpisodesPolitical Humor & Satire BlogVideo Archive

...and Emily Bazelon

The Colbert ReportMon - Thurs 11:30pm / 10:30c
Affirmative Action Supreme Court Case - Emily Bazelon
Colbert Report Full EpisodesPolitical Humor & Satire BlogVideo Archive

Activists rally for diversity in higher education

- by Robinson Romero

On Monday, October 10th, Alliance for Justice rallied alongside civil rights leaders, academics, self-proclaimed “affirmative action babies,” parents, students and other activists who support the University of Texas’ affirmative action policies outside the U.S. Supreme Court. The rally was held in conjunction with oral arguments in Fisher v. University of Texas.

The case of Fisher v. University of Texas is but one of many high-profile cases the Court will hear this term. Fisher revisits the issue of college affirmative action policies and will determine whether they are constitutional under the Fourteenth Amendment’s Equal Protection Clause.

As the justices heard oral arguments inside the Court, demonstrators assembled along the steps of the Supreme Court to exercise their First Amendment rights to send a simple message: Diversity matters!

Starting as early as 7 a.m., speakers infused energy and life into the crowd, shouting chants and invigorating listeners with impassioned speeches. Speakers reaffirmed the continued need for affirmative action policies in education today, but they also served to remind us of the not-so- distant past - a past marred by segregation, institutional racism, and inequality. And they reminded us that these problems persist today. They reminded us that this was not simply a black or white issue, but an issue that extended to all Americans, including women, Latinos, Asian Americans, LGBTQ people, and other historically-marginalized groups.

Regardless of whether the demonstrators actually affected proceedings in the Court or the outcome of the case, the rally should be remembered as a symbolic message to the people of the United States that we must continue to fight to ensure equal justice for all and to support equal access to education.

Robinson Romero is AFJ's Outreach Intern 

Thursday, October 11, 2012

From the “Concurring Opinions” blog: Professor Sherrilyn Ifill on Fisher v. University of Texas: Still litigation without minority representation

Prof. Sherrilyn Ifill of the University of Maryland Francis King Carey School of Law was one of the experts featured in AFJ’s 2011 Documentary, A Question of Integrity: Politics, Ethics and the Supreme Court.  A nationally-recognized expert on civil rights litigation, she analyzed the affirmative action case argued before the Supreme Court yesterday for the Concurring Opinions Blog.  She focuses on a group with a huge stake in the outcome that was left out of the case:

Prof. Ifill
Since the Bakke v. California case, higher education affirmative action cases have largely been litigated between white applicants who claim they were excluded from university admissions as a result of affirmative action, and historically white universities who have in the last 30 years sought to diversify their student bodies.  Minority students, whose interests are deeply affected by the litigation in these cases, are often relegated to the sidelines.

Read the full post at Concurring Opinions

Here’s how Adam Serwer of Mother Jones described oral argument in the case:

Three white lawyers argued before a mostly white Supreme Court on Wednesday about whether the University of Texas-Austin's admissions process—designed to diversify its student body—discriminated against a white applicant.

Read his full story here

See also:
A recap of the oral argument from SCOTUSblog

It's all one more reminder of why judges matter, and how much difference a single vote can make on the Supreme Court.

Wednesday, October 10, 2012

From Media Matters: Myths and facts about affirmative action, higher education, and the Constitution

With the Supreme Court scheduled to hear arguments today on affirmative action in higher education, Media Matters for America has an excellent rundown of some of the myths and facts about the topic.

As Media Matters explains:
Affirmative action policies that will come before the Supreme Court in the upcomingFisher v. University of Texas case have long been the target of right-wing misinformation that distorts the benefits of diversity in higher education. Contrary to the conservative narrative in the media, these admissions processes serve important national interests by promoting equal opportunity and are based on long-standing law.

To read the full post click here.