Jim Clark: In modern America, is affirmative action still constitutional?
December 31, 2015
Is the US Supreme Court finally going to determine whether affirmative action policies are constitutional?
Affirmative action in college admissions are those in which minorities historically subjected to discrimination are given preferences based on race.
Here's what's going on. The University of Texas admits three-quarters of its applicants if they are in the top 10% of high school graduating classes. No discrimination there.
However, it also reserves one quarter of its spots for students falling short of that academic standard and uses race as a supplemental qualifier "to achieve diversity."
White student Abagail Fisher did not meet the "top 10%" criteria and was denied admission to UT. She sued and the lower court upheld the constitutionality of UT's affirmative action policy.
In 2013, her case found its way to the US Supreme Court. The justices remanded the case to the appeals court with instructions to apply "strict scrutiny" to the use of race in admissions.
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The appeals court again upheld UT and Fisher again sued claiming the "scrutiny" was inadequate. Again the case (now known as "Fisher II") found its way to the Supreme Court
Oral arguments in "Fisher II" were heard earlier this month and it appears that, not surprisingly, the court will split on conservative/liberal lines.
Justice Scalia pondered whether black students who were admitted based on race would be better off at a "slower-track school where they do well" academically.
Justice Roberts wondered aloud: "What unique perspective does a minority student bring to a physics class?" The court's only Hispanic, Justice Sotomayor, said diversity is needed to alleviate concerns about race-related incidents on campus as well as feelings of isolation by minority students.
Justices Breyer and Ginsburg appeared to agree. Swing vote Justice Kennedy hinted that he might favor sending the case back to the lower court so UT could submit more evidence supporting its consideration of race as an admission factor.
The history of the struggle dates back to 1978, when white student Alan Bakke was denied admission to the University of California, Davis Medical School. In the case of Bakke vs. UC Regents, the Supreme Court held that some affirmative action programs were constitutional but not those based solely on race.
In two famous 2003 cases, Grutter vs. Bollinger and Gratz vs. Bollinger, the US Supreme Court okayed the University of Michigan's consideration of race as part of a "holistic review" of an application.
Justice Sandra Day O'Conner wrote: "The Court expects that 25 years from now the use of racial preferences will no longer be necessary."
However the same court held unconstitutional UM's automatic awarding of 20 points to minority students. In 2007 the Supreme Court held as unconstitutional the practice of using race as a "tiebreaker" between equally qualified students.
So what have we learned? It appears the Supreme Court recognizes that past discriminatory policies such as segregation and Bracero programs have been devastating to blacks and Hispanics and that therefore some degree of quid pro quo was initially acceptable by way of reparation or restitution.
However, this past permissiveness is inconsistent with treatment of Orientals; the Chinese Exclusion Act of 1882 and the interning of Japanese-Americans after Pearl Harbor were clear acts of government-sponsored invidious discrimination but no affirmative action programs exist for students of Far Eastern descent.
Interestingly though, two federal lawsuits by Asian-American students against Harvard and the University of North Carolina alleging discrimination in admissions are on hold pending resolution of Fisher II.
It is clear from history that when liberal academia is entrusted with decisions affecting taxpayer financed institutions of higher education they will bend over backwards to mete out "justice" to those they perceive to be disadvantaged "little guys."
Faced with the threat of Asian-American students alleging discrimination, perhaps it's time that the Supreme Court fashion a total "color-blindness" rule governing college admissions.
Jim Clark is president of Republican Advocates. He has served on the Washoe County and Nevada GOP Central Committees. He can be reached at firstname.lastname@example.org.
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