The Supreme Court on Affirmative Action: 5 Possible Outcomes
http://www.truthdig.com/report/item/supreme_court_on_affirmative_action_5_po
ssible_outcomes_20151211/
Posted on Dec 11, 2015
By Bill Blum
Abigail Fisher, who challenged the use of race in college admissions,
speaks to reporters outside the Supreme Court in Washington on Wednesday.
With her is Edward Blum, who helped bring the case to court. (J. Scott
Applewhite / AP)
Like a lot of veterans-or old fogies, take your pick-of the political
uprisings of the late '60s and early '70s, I've watched the growth of the
new college protest movement with avid interest. I was heartened by the
determined young activists who stood up to entrenched racism at the
University of Missouri. I've also applauded-with a few quibbles here and
there-the many others who, inspired by the Black Lives Matter struggle, have
raised demands for greater diversity on campuses across the country.
On Wednesday, those demands made their way to the Supreme Court-not
directly, but in effect, during the oral arguments heard in the case of
Abigail Noel Fisher v. the University of Texas.
Filed in 2008 after her application to UT was rejected, Fisher's case was
originally considered by the Supreme Court in 2012-13 but was sent back to
the 5th Circuit Court of Appeals. It is now before the Supreme Court for a
second round of review.
Fisher's complaint challenges the university's consideration of race in its
undergraduate admissions program. If she prevails on all of her claims, the
last tepid vestiges of race-conscious affirmative action will end, not just
at UT but at public colleges and universities throughout the land. Private
institutions that receive federal funding subject to Title VI of the Civil
Rights Act of 1964 would also be bound by a Fisher victory.
Such an outcome would deal a body blow to the central aims of the new
student movement, as well as to the cause of civil rights generally. The
Fisher case thus packs landmark potential, and warrants close examination.
Like every lawsuit, Fisher's tells a story-not only about abstract legal
rules and regulations but about people. The most important cases, such as
those that reach the Supreme Court, also tell stories about political power
and competing social and moral values.
Fisher's saga as a litigant began in 2005, when a former stockbroker and
failed Republican congressional candidate named Edward Blum (no relation to
yours truly) founded the Project on Fair Representation (POFR) in Austin as
a nonprofit legal defense fund under Section 501(c)(3) of the Internal
Revenue Code.
As its website declares, POFR's mission is to end "racial and ethnic
classifications and preferences in state and federal courts." Its work is
financed by grants from the Koch brothers-backed Donors Trust group, a
shadowy fundraising organization based in Arlington, Va., that Mother Jones
magazine dubbed in 2013 the "dark-money ATM of the conservative movement."
Other beneficiaries of Donors Trust grants, according to Mother Jones, have
included the Heritage Foundation, Grover Norquist's Americans for Tax
Reform, the NRA, the Cato Institute, the American Enterprise Institute and
The Federalist Society.
One of Blum's first targets as POFR's director was his alma mater-the
University of Texas and its flagship Austin campus, where he graduated in
1973.
Blum objected to the university's 2004 move to reinstate a race-conscious
affirmative action program for undergraduate admissions. An earlier
affirmative action program had been disbanded as a result of a federal
circuit court ruling-Hopwood v. Texas-that held that the consideration of
race in college admissions violated the equal protection rights of white
applicants. But UT administrators were encouraged to act by a 2003 Supreme
Court decision-Grutter v. Bollinger-that had approved the University of
Michigan Law School's affirmative action program.
The Michigan system avoided the numerical quotas that the court had
disapproved back in 1978 in Regents of the University of California v.
Bakke. But it permitted admissions officers to take race, among myriad other
criteria, into account in assessing applicants for the purpose of achieving
a diverse student body.
The new Texas program, which has been slightly modified since its inception
but continues to operate pending Supreme Court action, became known as the
Ten Percent Plan (TTP). Under it, Texas high school students who graduate in
the top 10 percent of their classes are guaranteed admission to the
university. Applicants who fail to make the cut are evaluated under a
second-tier "holistic" index that not only considers academic records and
test scores but also a student's extracurricular activities, personal
achievements, socio-economic background, family circumstances, native
language and race, among other criteria.
Currently, UT is required to fill 75 percent of the spaces available in each
entering freshman class with in-state 10-percent applicants. With another 10
percent of spaces reserved for out-of-state and international students,
competition for the remaining in-state slots among non-10-percent residents
is fierce.
Determined to derail the UT's use of race as violative of the 14th
Amendment, Blum set out in 2005 to locate a good plaintiff to champion a
lawsuit. Even though he isn't an attorney, he had by then become a savvy
legal operative, having served, after his unsuccessful congressional bid, as
a co-plaintiff in an apportionment case (Bush v. Vera) that made it all the
way to the Supreme Court in 1996. In the Vera appeal, Blum and his fellow
litigants convinced the high court to invalidate three congressional
districts in Texas that had been created to give Hispanics and
African-Americans voting majorities.
After his triumph in Vera, Blum moved for a time to Washington, D.C., where
he worked with the conservative Center for Equal Opportunity and became a
visiting fellow at the American Enterprise Institute. He also solidified
what would prove to be a long and fruitful relationship with conservative
super-lawyer Bert Rein, whose credits included a stint as deputy assistant
secretary of state during the Nixon administration.
Back in Austin, the search for the right plaintiff to take on UT's holistic
admissions program dragged on until March 2008, when Blum received a phone
call from an old friend and business associate-accountant Richard Fisher-who
reported that his 18-year-old daughter Abigail's heart had been broken after
she had received a rejection notice from UT.
The two men discussed Abigail's situation. She had finished in the top 12
percent of her high school class at Sugar Land, Texas, 20 miles southwest of
Houston, just missing the automatic cutoff. She had compiled a 3.59 GPA and
scored a respectable 1180 on her SAT exam. In addition, she had played cello
in the school orchestra, was active in math club and the soccer team, and
had done volunteer work with Habitat for Humanity.
Blum concluded that Abigail and another young woman who similarly had been
denied UT admission-Rachel Michalewicz-would make ideal plaintiffs. With
Donors Trust bankrolling him, Blum retained attorney Rein to file a federal
lawsuit.
The suit failed at the district court level and was unanimously denied by
the 5th Circuit Court of Appeals. Michalewicz withdrew from the litigation
in 2011. But despite these setbacks, Blum and Rein appealed to the Supreme
Court, which agreed to hear their petition.
Although the Grutter case was still the controlling legal precedent, Blum
and Rein knew that the Supreme Court, under the leadership of Chief Justice
John Roberts, was no fan of affirmative action or anti-discrimination
legislation generally. Indeed, one month after the court heard oral
arguments on the Fisher case in October 2012, it decided to review another
lawsuit orchestrated by Blum and Rein-Shelby County v. Holder-dealing with
the Voting Rights Act of 1965. In June 2013, the court in that case gutted a
key provision of the Voting Rights Act, with Roberts writing for a 5-4
majority that racial discrimination in elections was largely an evil of the
past. During the oral arguments held in the case three months earlier,
Justice Antonin Scalia famously railed against the entire Voting Rights Act
as an unconstitutional "racial entitlement."
Blum's hopes for a comparable outcome in Fisher, however, were dashed when
the court handed down a 7-1 opinion, authored by Justice Anthony Kennedy,
that remanded the appeal back to the 5th Circuit. Kennedy's opinion ordered
the 5th Circuit to reconsider UT's holistic policy under the exacting
"strict scrutiny" standard that is used to test laws and governmental
practices that discriminate on the basis of race. To pass the test, a
challenged statute or policy must be deemed necessary to accomplish a
compelling state interest, and there must be no less restrictive
alternatives to the law or policy under consideration that could further
such interest.
After the 5th Circuit again upheld the Texas program in July 2014, finding
that the university's consideration of race was needed to further the
compelling interest in campus diversity, the Supreme Court again agreed to
consider Fisher's suit.
Judging from the transcript of the oral arguments on Wednesday, the court is
split 5-3 along party lines against affirmative action. With Justice Elena
Kagan recusing herself because of her past involvement with the case as
solicitor general during President Obama's first term, the Texas plan
appears to be on life support.
Midway through the 90-minute proceeding, Scalia appeared, once more, to lose
what remains of his withering judicial temperament, remarking: "There are
those who contend that it does not benefit African-Americans to . get them
into the University of Texas where they do not do well, as opposed to having
them go to a less advanced school, a . slower-track school where they do
well. One of the briefs pointed out that most of the black scientists in
this country don't come from schools like the University of Texas. They come
from lesser schools where they do not feel that they are being pushed too
hard in classes that are too fast for them."
Avoiding such an overtly racist perspective, Chief Justice Roberts posed a
pointed follow-up question about the value of diversity, asking
rhetorically, "What unique perspective does a minority student bring to a
physics class?"
Justice Samuel Alito raised concerns with the evidentiary record that had
been compiled in the case, while Justice Clarence Thomas remained mum, as he
invariably does during oral arguments. Both, however, are staunch critics of
affirmative action. Thomas, the court's lone African-American, authored a
separate concurring opinion in the court's 2013 Fisher decision, contending
that a state's use of race in higher education should be categorically
prohibited by the Equal Protection Clause of the 14th Amendment.
Given the court's divisions, the task of drafting the panel's majority
opinion is likely to fall to Justice Kennedy, who will have at least five
technical options:
First, and least probable, Kennedy and the court could dismiss Fisher's
appeal as moot, since Fisher graduated from Louisiana State University in
2012 and has sustained no real lasting injury, financial or otherwise, from
the denial of her UT application. According to her LinkedIn profile, Fisher
is currently employed in Houston as a marketing business analyst.
Second, and also unlikely, Kennedy could uphold the Texas plan as
constitutional and find that Fisher's application was fairly evaluated, and
that she was rejected not because of her race but because her achievements
just didn't measure up to UT's stringent standards. As Rutgers University
law professor Elsie Bodie noted in a recent New York Times op-ed, the same
year Fisher was rejected, UT also denied admission to 168 black and Latino
applicants whose academic and personal profiles resulted in scores as high
or higher than Fisher's.
Hedging against the prospect of a loss, the dogged Blum has funded two other
affirmative action cases-against Harvard and the University of North
Carolina, respectively. Both complaints are pending at the federal district
court level.
A third possible outcome is that Kennedy could remand the case a second time
to the lower courts for an evidentiary hearing, following Alito's line of
questioning. But such an order would please neither side in the case, and
would only prolong the legal battle.
The remaining two possibilities are more ominous. The court could either
strike down the Texas plan on narrow grounds that would not extend to other
state systems, or it could finally yield to the Scalia-Thomas view that all
forms of race-conscious affirmative action in higher education are
unconstitutional. If it chooses the latter course, it's conceivable-though I
wouldn't bet on it-that either Scalia or Thomas could be assigned to draft
the majority opinion.
This is, plainly, the great fear of progressive educators, regardless of
which justice gets to pen the decision. In 2014, in Schuette v. Coalition to
Defend Affirmative Action, the court upheld a voter-adopted amendment to
Michigan's Constitution that prohibits state universities from considering
race as part of their admissions process. To date, seven other states,
including California, have implemented similar bans.
In the Fisher case, should the court rule that states that favor
race-conscious affirmative action no longer may exercise that option, the
effects will be profound, especially at the nation's most selective colleges
and universities. Numerous studies have shown that bans on affirmative
action lead to fewer minority admissions. Even race-neutral programs that
take socio-economic disadvantages into account cannot take up the slack.
America remains a racist society. Participants in the Black Lives Matter and
new student movements know this. Sadly, Chief Justice Roberts and his
Republican brethren apparently don't.
http://www.truthdig.com/ http://www.truthdig.com/
The Supreme Court on Affirmative Action: 5 Possible Outcomes
http://www.truthdig.com/report/item/supreme_court_on_affirmative_action_5_po
ssible_outcomes_20151211/
Posted on Dec 11, 2015
By Bill Blum
Abigail Fisher, who challenged the use of race in college admissions, speaks
to reporters outside the Supreme Court in Washington on Wednesday. With her
is Edward Blum, who helped bring the case to court. (J. Scott Applewhite /
AP)
Like a lot of veterans-or old fogies, take your pick-of the political
uprisings of the late '60s and early '70s, I've watched the growth of the
new college protest movement with avid interest. I was heartened by the
determined young activists who stood up to entrenched racism at the
University of Missouri. I've also applauded-with a few quibbles here and
there-the many others who, inspired by the Black Lives Matter struggle, have
raised demands for greater diversity on campuses across the country.
On Wednesday, those demands made their way to the Supreme Court-not
directly, but in effect, during the oral arguments heard in the case of
Abigail Noel Fisher v. the University of Texas.
Filed in 2008 after her application to UT was rejected, Fisher's case was
originally considered by the Supreme Court in 2012-13 but was sent back to
the 5th Circuit Court of Appeals. It is now before the Supreme Court for a
second round of review.
Fisher's complaint challenges the university's consideration of race in its
undergraduate admissions program. If she prevails on all of her claims, the
last tepid vestiges of race-conscious affirmative action will end, not just
at UT but at public colleges and universities throughout the land. Private
institutions that receive federal funding subject to Title VI of the Civil
Rights Act of 1964 would also be bound by a Fisher victory.
Such an outcome would deal a body blow to the central aims of the new
student movement, as well as to the cause of civil rights generally. The
Fisher case thus packs landmark potential, and warrants close examination.
Like every lawsuit, Fisher's tells a story-not only about abstract legal
rules and regulations but about people. The most important cases, such as
those that reach the Supreme Court, also tell stories about political power
and competing social and moral values.
Fisher's saga as a litigant began in 2005, when a former stockbroker and
failed Republican congressional candidate named Edward Blum (no relation to
yours truly) founded the Project on Fair Representation (POFR) in Austin as
a nonprofit legal defense fund under Section 501(c)(3) of the Internal
Revenue Code.
As its website declares, POFR's mission is to end "racial and ethnic
classifications and preferences in state and federal courts." Its work is
financed by grants from the Koch brothers-backed Donors Trust group, a
shadowy fundraising organization based in Arlington, Va., that Mother Jones
magazine dubbed in 2013 the "dark-money ATM of the conservative movement."
Other beneficiaries of Donors Trust grants, according to Mother Jones, have
included the Heritage Foundation, Grover Norquist's Americans for Tax
Reform, the NRA, the Cato Institute, the American Enterprise Institute and
The Federalist Society.
One of Blum's first targets as POFR's director was his alma mater-the
University of Texas and its flagship Austin campus, where he graduated in
1973.
Blum objected to the university's 2004 move to reinstate a race-conscious
affirmative action program for undergraduate admissions. An earlier
affirmative action program had been disbanded as a result of a federal
circuit court ruling-Hopwood v. Texas-that held that the consideration of
race in college admissions violated the equal protection rights of white
applicants. But UT administrators were encouraged to act by a 2003 Supreme
Court decision-Grutter v. Bollinger-that had approved the University of
Michigan Law School's affirmative action program.
The Michigan system avoided the numerical quotas that the court had
disapproved back in 1978 in Regents of the University of California v.
Bakke. But it permitted admissions officers to take race, among myriad other
criteria, into account in assessing applicants for the purpose of achieving
a diverse student body.
The new Texas program, which has been slightly modified since its inception
but continues to operate pending Supreme Court action, became known as the
Ten Percent Plan (TTP). Under it, Texas high school students who graduate in
the top 10 percent of their classes are guaranteed admission to the
university. Applicants who fail to make the cut are evaluated under a
second-tier "holistic" index that not only considers academic records and
test scores but also a student's extracurricular activities, personal
achievements, socio-economic background, family circumstances, native
language and race, among other criteria.
Currently, UT is required to fill 75 percent of the spaces available in each
entering freshman class with in-state 10-percent applicants. With another 10
percent of spaces reserved for out-of-state and international students,
competition for the remaining in-state slots among non-10-percent residents
is fierce.
Determined to derail the UT's use of race as violative of the 14th
Amendment, Blum set out in 2005 to locate a good plaintiff to champion a
lawsuit. Even though he isn't an attorney, he had by then become a savvy
legal operative, having served, after his unsuccessful congressional bid, as
a co-plaintiff in an apportionment case (Bush v. Vera) that made it all the
way to the Supreme Court in 1996. In the Vera appeal, Blum and his fellow
litigants convinced the high court to invalidate three congressional
districts in Texas that had been created to give Hispanics and
African-Americans voting majorities.
After his triumph in Vera, Blum moved for a time to Washington, D.C., where
he worked with the conservative Center for Equal Opportunity and became a
visiting fellow at the American Enterprise Institute. He also solidified
what would prove to be a long and fruitful relationship with conservative
super-lawyer Bert Rein, whose credits included a stint as deputy assistant
secretary of state during the Nixon administration.
Back in Austin, the search for the right plaintiff to take on UT's holistic
admissions program dragged on until March 2008, when Blum received a phone
call from an old friend and business associate-accountant Richard Fisher-who
reported that his 18-year-old daughter Abigail's heart had been broken after
she had received a rejection notice from UT.
The two men discussed Abigail's situation. She had finished in the top 12
percent of her high school class at Sugar Land, Texas, 20 miles southwest of
Houston, just missing the automatic cutoff. She had compiled a 3.59 GPA and
scored a respectable 1180 on her SAT exam. In addition, she had played cello
in the school orchestra, was active in math club and the soccer team, and
had done volunteer work with Habitat for Humanity.
Blum concluded that Abigail and another young woman who similarly had been
denied UT admission-Rachel Michalewicz-would make ideal plaintiffs. With
Donors Trust bankrolling him, Blum retained attorney Rein to file a federal
lawsuit.
The suit failed at the district court level and was unanimously denied by
the 5th Circuit Court of Appeals. Michalewicz withdrew from the litigation
in 2011. But despite these setbacks, Blum and Rein appealed to the Supreme
Court, which agreed to hear their petition.
Although the Grutter case was still the controlling legal precedent, Blum
and Rein knew that the Supreme Court, under the leadership of Chief Justice
John Roberts, was no fan of affirmative action or anti-discrimination
legislation generally. Indeed, one month after the court heard oral
arguments on the Fisher case in October 2012, it decided to review another
lawsuit orchestrated by Blum and Rein-Shelby County v. Holder-dealing with
the Voting Rights Act of 1965. In June 2013, the court in that case gutted a
key provision of the Voting Rights Act, with Roberts writing for a 5-4
majority that racial discrimination in elections was largely an evil of the
past. During the oral arguments held in the case three months earlier,
Justice Antonin Scalia famously railed against the entire Voting Rights Act
as an unconstitutional "racial entitlement."
Blum's hopes for a comparable outcome in Fisher, however, were dashed when
the court handed down a 7-1 opinion, authored by Justice Anthony Kennedy,
that remanded the appeal back to the 5th Circuit. Kennedy's opinion ordered
the 5th Circuit to reconsider UT's holistic policy under the exacting
"strict scrutiny" standard that is used to test laws and governmental
practices that discriminate on the basis of race. To pass the test, a
challenged statute or policy must be deemed necessary to accomplish a
compelling state interest, and there must be no less restrictive
alternatives to the law or policy under consideration that could further
such interest.
After the 5th Circuit again upheld the Texas program in July 2014, finding
that the university's consideration of race was needed to further the
compelling interest in campus diversity, the Supreme Court again agreed to
consider Fisher's suit.
Judging from the transcript of the oral arguments on Wednesday, the court is
split 5-3 along party lines against affirmative action. With Justice Elena
Kagan recusing herself because of her past involvement with the case as
solicitor general during President Obama's first term, the Texas plan
appears to be on life support.
Midway through the 90-minute proceeding, Scalia appeared, once more, to lose
what remains of his withering judicial temperament, remarking: "There are
those who contend that it does not benefit African-Americans to . get them
into the University of Texas where they do not do well, as opposed to having
them go to a less advanced school, a . slower-track school where they do
well. One of the briefs pointed out that most of the black scientists in
this country don't come from schools like the University of Texas. They come
from lesser schools where they do not feel that they are being pushed too
hard in classes that are too fast for them."
Avoiding such an overtly racist perspective, Chief Justice Roberts posed a
pointed follow-up question about the value of diversity, asking
rhetorically, "What unique perspective does a minority student bring to a
physics class?"
Justice Samuel Alito raised concerns with the evidentiary record that had
been compiled in the case, while Justice Clarence Thomas remained mum, as he
invariably does during oral arguments. Both, however, are staunch critics of
affirmative action. Thomas, the court's lone African-American, authored a
separate concurring opinion in the court's 2013 Fisher decision, contending
that a state's use of race in higher education should be categorically
prohibited by the Equal Protection Clause of the 14th Amendment.
Given the court's divisions, the task of drafting the panel's majority
opinion is likely to fall to Justice Kennedy, who will have at least five
technical options:
First, and least probable, Kennedy and the court could dismiss Fisher's
appeal as moot, since Fisher graduated from Louisiana State University in
2012 and has sustained no real lasting injury, financial or otherwise, from
the denial of her UT application. According to her LinkedIn profile, Fisher
is currently employed in Houston as a marketing business analyst.
Second, and also unlikely, Kennedy could uphold the Texas plan as
constitutional and find that Fisher's application was fairly evaluated, and
that she was rejected not because of her race but because her achievements
just didn't measure up to UT's stringent standards. As Rutgers University
law professor Elsie Bodie noted in a recent New York Times op-ed, the same
year Fisher was rejected, UT also denied admission to 168 black and Latino
applicants whose academic and personal profiles resulted in scores as high
or higher than Fisher's.
Hedging against the prospect of a loss, the dogged Blum has funded two other
affirmative action cases-against Harvard and the University of North
Carolina, respectively. Both complaints are pending at the federal district
court level.
A third possible outcome is that Kennedy could remand the case a second time
to the lower courts for an evidentiary hearing, following Alito's line of
questioning. But such an order would please neither side in the case, and
would only prolong the legal battle.
The remaining two possibilities are more ominous. The court could either
strike down the Texas plan on narrow grounds that would not extend to other
state systems, or it could finally yield to the Scalia-Thomas view that all
forms of race-conscious affirmative action in higher education are
unconstitutional. If it chooses the latter course, it's conceivable-though I
wouldn't bet on it-that either Scalia or Thomas could be assigned to draft
the majority opinion.
This is, plainly, the great fear of progressive educators, regardless of
which justice gets to pen the decision. In 2014, in Schuette v. Coalition to
Defend Affirmative Action, the court upheld a voter-adopted amendment to
Michigan's Constitution that prohibits state universities from considering
race as part of their admissions process. To date, seven other states,
including California, have implemented similar bans.
In the Fisher case, should the court rule that states that favor
race-conscious affirmative action no longer may exercise that option, the
effects will be profound, especially at the nation's most selective colleges
and universities. Numerous studies have shown that bans on affirmative
action lead to fewer minority admissions. Even race-neutral programs that
take socio-economic disadvantages into account cannot take up the slack.
America remains a racist society. Participants in the Black Lives Matter and
new student movements know this. Sadly, Chief Justice Roberts and his
Republican brethren apparently don't.
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