Entries in Affirmative Action (3)


Supreme Court to Hear Pivotal Affirmative Action Case

Comstock/Thinkstock(WASHINGTON) -- Supporters of affirmative action fear that the Supreme Court could curtail or further restrict the use of race-conscious admissions policies at public universities.

On Wednesday, all eyes will be on Justice Anthony Kennedy, whose vote is considered pivotal in the case brought by a white Texan who has sued the University of Texas at Austin, claiming that she was denied admission to the school in 2008 because of her race.  Abigail Fisher, who has since graduated from Louisiana State University, said she was subject to unequal treatment in violation of the 14th Amendment.

"I was taught from the time I was a little girl that any kind of discrimination was wrong, and for an institution of higher learning to act this way makes no sense to me," Fisher said in an interview clip posted on the website of the Project on Fair Representation, a legal defense foundation that's providing her with legal representation.

On the other side are lawyers for the University of Texas, who argue that, like many other universities, UT seeks to assemble a class that is diverse in innumerable ways -- including race -- and that "race is just one of many characteristics that form the mosaic presented by an applicant's file."

More than 90 friend of the court briefs have been filed in the case, with the Obama administration weighing in favor of the university.  Others, who support Fisher, argue that diversity can be achieved through race-neutral programs, and that race-preferential admissions policies can do more harm than good.

"What's at issue is: (1) whether it will remain permissible to consider race in an attempt to ensure that higher level education remains integrated; and (2) whether universities or the court are going to be the ones to determine what academic diversity consists of," said David D. Cole, a professor at Georgetown Law, who believes UT's plan should be upheld.

It was only recently, in 2003, that the Supreme Court narrowly upheld the limited use of race in public university admissions policies in Grutter v. Bollinger.  The five-four opinion was written by Justice Sandra Day O'Connor, who said that diversity was a compelling government interest.  But O'Connor has since retired from the high court, and has been replaced by Justice Samuel Alito, who is more skeptical of race-conscious admissions preferences.

In 1997, the Texas legislature passed the "Top 10 Percent Law," which mandates that Texas high school seniors in the top 10 percent of their class be automatically admitted to any Texas state university.  But after the Grutter decision came down, another policy was added that allows the school to consider race among several other factors for admission.  Fisher did not qualify for automatic admission, and was forced to compete with other non-top-10-percent state applicants.  She said she was denied admission, even though her academic credentials exceeded those of some of the admitted minority candidates.

The University of Texas, which was racially segregated during the first 70 years of its existence, argues that its current program exemplifies the type of plan the Supreme Court allowed in Grutter v. Bollinger: "Race is only one modest factor among many others weighed; it is considered only in an individualized and contextual way that examines the student in their totality."

But lawyers for Fisher said that the top 10 percent plan had made UT one of the most diverse public universities in the nation, and that the school did not need to overlay the successful race-neutral program with another one that considered race.  Furthermore, they said that the school is working toward an impermissible goal of using race in admissions to mirror the demographics of Texas, which they said amounted to "racial balancing."

While Fisher's lawyers argue that Grutter should be clarified or even overturned, supporters of UT's program take solace in Kennedy's opinion in Grutter.  He ruled against the University of Michigan Law School program named in that case but said, "There is no constitutional objection to the goal of considering race as one modest factor among many others to achieve diversity, but an educational institution must ensure, through sufficient procedures, that each applicant receives individual consideration and that race does not become a predominant factor in the admissions decision making."

Despite those words, Kennedy has never -- in his entire career on the bench -- voted in favor of racial preferences.

Copyright 2012 ABC News Radio


Supreme Court Faces Affirmative Action and Gay Marriage

iStockphoto/Thinkstock(WASHINGTON) -- For anyone fearing that this Supreme Court term might lack the drama of the last one: fear not.

On Monday, for the first time since delivering the explosive health care decision last spring, the justices will take the bench and officially begin a new term.  On the docket is a major case regarding affirmative action to be argued in early October, and later in the fall the justices could also vote to hear cases on gay marriage and voting rights.

The justices have had the summer to recover from the grueling schedule of last spring, and the biting dissent from four of the conservative justices aimed at Chief Justice John Roberts, who voted to uphold the health care law as a tax the government has a constitutional power to levy.

Justices Antonin Scalia, Anthony Kennedy, Samuel Alito and Clarence Thomas did not mince their words, writing that the majority's decision "amounts to vast judicial overreaching."

Over the summer, Scalia and Thomas refuted suggestions that their jurisprudential disagreements would lead to any personal rifts on the court.

"There are legal clashes on legal questions, but not personally," Scalia told CNN.  "The press likes to paint us as, you know, nine scorpions in a bottle we're all in.  That's just not the case at all."

During a talk at the National Archives, Thomas spoke more generally about the court and praised his colleagues.

"I've been there now through a number of members of the court," he said, "and in the years I have been there I honestly come away thinking that every member really wants to make it work."

Copyright 2012 ABC News Radio


Supreme Court to Take Up Controversial Affirmative Action Case

iStockphoto/Thinkstock(WASHINGTON) -- The Supreme Court has announced it will take up another hot button social issue on its docket: affirmative action.

On Tuesday, the Court agreed to hear a case brought by Abigail Fisher, a white student who says she was denied admission to the University of Texas based only on the color of her skin.

The case has been closely monitored because supporters of affirmative action fear the Court might now be willing to curtail or further restrict "race conscious admissions programs" at public universities.

Critics claim such policies stress skin pigment over school performance when student applications are considered.

The Court will most likely hear the case next fall -- around the time of the election -- as it has already filled its final April argument calendar.  Justice Elena Kagan will not participate in the case because she dealt with the issue in her previous job as Solicitor General.

"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," says Edward Blum, the Director of the Project on Fair Representation , a non-profit legal defense foundation that has provided legal counsel for Fisher.

In 1997, the Texas legislature passed the "Top Ten Percent Law" which mandates that Texas high school seniors in the top 10 percent of their class be automatically admitted to any Texas state university.  In addition to that program, the school considers race along with several other factors for admission.

Fisher did not qualify for automatic admission.  Instead, she competed with other non-top 10 state applicants, some of whom were entitled to racial preferences. She was denied admission and argues it was because of her race. 

In court papers, her lawyers argue, "Whether a public university can layer racial preferences over a non-racial admissions plan that ensures very substantial levels of minority enrollment is a question which itself warrants review by this Court."

It was only in 2003 that the Supreme Court took up a similar affirmative action case and narrowly upheld the limited use of race as a factor in law school admissions.  Justice Sandra Day O’Connor wrote the 5-4 decision -- Grutter v. Bollinger -- and held that the government has a compelling interest in diversity in public universities.

But a lot has changed since then.  Most importantly in this instance, Justice Samuel Alito replaced Justice O’Connor on the bench.

"The addition of Justice Alito to this Court adds an element to the case that would not likely have been there with Justice O’Connor.  The difference is that Justice Alito has shown himself in other cases to be more skeptical of racial classifications and preferences than did Justice O’Connor," says Blum.

Copyright 2012 ABC News Radio

ABC News Radio