Affirmative action in college admissions likely to be struck down by Supremes

[jimmy olsen]

About time

http://usnews.msnbc.msn.com/_news/2012/02/21/10466979-affirmative-action-in-college-admissions-supreme-court-to-hear-case

Affirmative action in college admissions? Supreme Court to hear case

By NBC News, msnbc.com staff and news services

Updated at 1:04 p.m. ET: WASHINGTON -- In a potentially momentous case, the Supreme Court will once again confront the issue of race in university admissions in an appeal brought by a white student denied a spot at the flagship campus of the University of Texas.

The court said Tuesday it will return to the issue of affirmative action in higher education for the first time since its 2003 decision endorsing the use of race as a factor in freshmen admissions. This time around, a more conservative court is being asked to jettison that ruling and outlaw affirmative action in the university setting.

A broad ruling in favor of the student, Abigail Fisher, could threaten affirmative action programs at many of the nation's public and private universities, said Vanderbilt University law professor Brian Fitzpatrick.

The high court agreed to hear an appeal by Fisher, who was a high school senior when she applied but was rejected for admission in 2008 to the University of Texas at Austin.

Fisher filed a lawsuit with another woman who was also denied admission. They contended the university's race-conscious policy violated their civil and constitutional rights. By then, the two had enrolled elsewhere.
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The other woman has since dropped out of the case and the state has said that Fisher is a senior at Louisiana State University whose impending graduation should bring an end to the lawsuit. But the Supreme Court appeared not to buy that argument Tuesday.

Most entering freshmen at Texas are admitted because they are among the top 10 percent in their high school class. The Texas policy applies to the remaining spots and allows for the consideration of race along with other factors.

Texas had dropped affirmative action policies after a 1996 appeals court ruling. But following the high court ruling in 2003, the university resumed considering race starting with its 2005 entering class.

Texas said its updated policy does not use quotas, which the high court has previously rejected. Instead, it said it takes a Supreme Court-endorsed holistic approach to enrollment, with an eye toward increasing the diversity of the student body.

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.

Fisher contends the university's admissions policies discriminated against her on the basis of race in violation of her constitutional rights and the federal civil rights laws. She says many minority students who were admitted had lower grades and test scores than she did.

Her attorney urged the Supreme Court to reconsider its last ruling on the issue in 2003, when it reaffirmed that a diverse student population can justify use of race as one factor to help minorities gain admission to public universities and colleges.

But the makeup of the high court has changed since then. Justice Sandra Day O'Connor, who approved of the concept, has been replaced by the generally more conservative Samuel Alito.

Also, Justice Elena Kagan has taken herself off this case, because she worked on the issue while still at the Justice Department as a solicitor general. That takes a potential vote in favor of affirmative action off the court.

In its 2003 ruling, the Supreme Court upheld a University of Michigan Law School's use of race to favor minority applicants in the admissions process. In a 5-4 decision, the court ruled that the government has a compelling interest in diversity in public universities. That case was Grutter v. Bollinger.

At issue in both cases is whether and to what extent the Fourteenth Amendment's guarantee of "equal protection of the laws" permits race to be used as a factor in efforts to achieve greater diversity in higher education. For more than three decades, the Supreme Court has said that although race may be one of numerous factors taken into account, it cannot be the predominant consideration in an admissions process.
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Erwin Chemerinsky, a constitutional law scholar and dean of the University of California Irvine's law school, has called the Fisher case "potentially momentous." He says there are almost surely four votes -- John Roberts, Antonin Scalia, Clarence Thomas and Alito -- to overrule Grutter. That means the outcome could rest with Justice Anthony Kennedy's vote.

Fitzpatrick said two other states, California and Florida, use "top 10" plans similar to Texas' plan, although California law explicitly prohibits the consideration of race.

"But the vast majority of schools that are selective are using affirmative action, though they don't like to advertise it for fear of being sued," he said.

A three-judge federal appeals panel of the New Orleans-based 5th Circuit upheld the Texas program at issue in a January 2011 decision, saying it did not violate the 14th Amendment's equal-protection clause.

The Supreme Court could hear the case in October or the first week of November, in the final days of the presidential campaign.

Pacific Legal Foundation, a conservative law group that filed a friend-of-the-court brief urging the Supreme Court to take the case, applauded Tuesday's announcement as "good news for everyone who believes in equal rights and equal opportunities."

"Using race in admissions decisions, to achieve diversity, amounts to stereotyping people by their race," PLF attorney Joshua P. Thompson said in a statement. "In the real world, shared skin color does not automatically translate into shared backgrounds or beliefs.  Racial diversity in a student body does not guarantee a diversity of experience and perspectives.  It is unrealistic and wrong to try to pigeon-hole people by their race."

The case is Fisher v. University of Texas at Austin, 11-345.

The Associated Press, Reuters and NBC News Chief Justice Correspondent Pete Williams contributed to this report.

[Admiral Yi]

Hey Guller, $50 says this decision doesn't go 5-4 to ban affirmative action. 

[11B4V]

Good, 'bout time those colored folk got treated like everyone else.

[MadImmortalMan]

Well, Mary will certainly vote to keep affirmative action alive. That's how she rolls, you know. Susaye is probably for it as well, and Scherrie against. So it will come down to Diana Ross to either tip the balance or deadlock them in a tie. Unless, of course all of the other former members of the group get a vote too. Then it's all up in the air.

[Drakken]

Since Kagan has reportedly recused herself over this question, what would happen if the decision is split 4-4?

[OttoVonBismarck]

A 4-4 split they'd issue a "per curiam" decision which are typically quite short, a dissenting opinion can be attached to this. It does not carry precedential weight so really whatever the prior court ruled on the issue would stand. It's unlikely it will go 4-4 though, Kennedy isn't as hard line against AA as the Roberts/Thomas/Scalia/Alito contingent, but I believe he's also never voted in favor of AA in any SCOTUS ruling he's been involved in that touched on the issue, so it looks likely it'll be 5-3.

[OttoVonBismarck]

Anyway, SCOTUS horse betting doesn't interest me so much.

I've never liked Affirmative Action, I guess I've always struggled with the concept of "collective rights" over individual rights. On some levels I totally recognize that groups that have suffered massive and historic racism and discrimination can't have "equality of opportunity" without some sort of leg up. They were essentially held back so much by both de jure and de facto discrimination that it's really set them back for many generations and I understand a desire to address that. But I have a hard time squaring that with saying a more qualified white teenager doesn't get into a school over a black teenager. You're punishing tomorrow's generation for the sins of my parents generation.

That being said, it's always been difficult for me to just say we shouldn't have affirmative action at all. I think having it at the college level makes the liberals who run universities feel good about themselves, and I do think it is a social good in that it creates more benefit than harm (the harm being non-minority kids of today's generation who weren't part of that institutional discrimination but who get disadvantaged by the policy.) However, what has always worried me is affirmative action is like coming up to a dude who had his leg chopped off by a hacksaw with infection consuming almost his entire body and putting a band-aid on his forehead.

America has historically discriminated against minorities and this creates a situation in which even today's minorities are disadvantaged. However, the most disadvantaged minorities need help in K-12 far more than they need sweetheart college admissions criteria. If you send these kids to gang and crime infested schools with the worst teachers and the most dangerous facilities sure the few high achievers that actually want to go to college will benefit from affirmative action but you've basically done nothing for the 90% that are so fucked up by the K-12 system in bad minority neighborhoods in this country.

So to me the biggest issue is, if we want to try and correct historic discrimination, sweetheart college admissions are well and good but mostly just window dressing. A few exceptional minorities will take advantage and use it to boost themselves out of squalor, then the middle and upper class minorities who grew up in suburbs and had great childhoods who don't need those advantages will get to use them to get one over on the whites they grew up with. The actual minorities that need help the most basically get screwed, by far the biggest beneficiaries of affirmative action are middle and upper class minorities, kids who have all the same advantages growing up as white kids who additionally get a better chance of college admission at their chosen school.

Unfortunately, even the small number of inner city kids who through some miracle make it to college and get in because of affirmative action flunk out within the first two years. Unfortunately the help they needed came far too late, and when it arrived it wasn't enough to give them stable lives, the study habits and self discipline they need to stay in college. If you really want to correct historic discrimination you need to essentially equalize the quality of schools in both the wealthiest and poorest school districts.

Note that I said "equalize the quality" that probably means spending far more money on the poorest school districts, not spending the same amount of money. That's part of the reason this approach isn't followed, but another part of the reason is you can't just throw money at it, you have to do more. What? I don't know. But I know shitty inner city schools already receive massive amounts of funding (I think D.C.s are usually near the top in ranks of highest spending per student) and are still god awful.

Most States have some equalization regime built in. I know some States have a rule where the average teacher pay in the county with the highest paid teachers can't be more than 10% higher than the average teacher pay in the county with the lowest paid teachers (and the State government will allocate dollars to county school boards to equalize such things) but that varies from State to State obviously and I don't know how much equalization goes on for things like facilities repair/construction/maintenance.

[garbon]

Good, 'bout time those colored folk got treated like everyone else.

[Ideologue]

This is bad news for us Hispanics.

[11B4V]

This is bad news for us Hispanics.

You're colored folk too. So dont feel left out.

[fhdz]

About time

Please; you're the whitest-looking Puerto Rican I've ever seen.

[Ideologue]

I look very Spanish. Goth-Alanian, really. 

[Josquius]

Race based affirmative action is just ridiculous and needs stamping out.
Why should a rich, privileged black kid get preferential treatment over a poor white kid from a horrible area with a crappy family situation?
Affirmative action based upon socio-economic concerns needs greatly increasing of course.

[DontSayBanana]

Meh.  I've gotten more anti-AA lately.  I believe that we've seen that it's just too close to the slippery slope.  AA's sole purpose is restorative, but what's the ending strategy?  At what point would we be able to objectively look and say "affirmative action has served it's purpose; it's time to phase it out?"  Conversely, what happens if we set an ending standard that can't be attained?  In either case, the risk of simply substituting one privileged class for another in perpetuity seems unacceptable.

[CountDeMoney]

I've never liked Affirmative Action,

Of course not.  You're white.