Court Leaves Affirmative Action Unresolved--But its Days are Numbered

Court sends clear signal that the era of explicitly race-based affirmative action is coming to an end.

Courtesy: professornerdster.com

(WASHINGTON DC) - The Supreme Court has put off a decision on the legal merits of race-based affirmative action programs.

In Fisher v. University of Texas, Abigail Fisher, a white student who was denied admission to the University of Texas in 2008, charged that the college policy of considering race violated her civil and constitutional rights.

The Justices sent the case, concerning the University's program to achieve racial diversity with a race-based affirmative action admissions program, back to the lower courts for further consideration under tougher standards of review.

The strict scrutiny called for does not permit a court to accept a school's assertion that its admissions process uses race in a permissible way without closely examining how the process works in practice. Yet this lack of such scrutiny is what characterized the decisions upholding the admissions policy by the District Court and the Fifth Circuit.

According to Justice Anthony Kennedy, the appeals court was too deferential to the University and its efforts to bring a "critical mass" of minority students and should have applied tough standards of constitutional review outlined in two prior decisions, Grutter v. Bollinger and University of California v. Bakker.

A concurring opinion by Justice Antonin Scalia indicates that he would vote to overturn any racial preferences in education or elsewhere: "I adhere to the view I expressed in Grutter v. Bollinger: 'The Constitution proscribes governmental discrimination on the basis of race and state-provided education is no exception.'"

Justice Clarence Thomas, in a separate opinion, equates those seeking racial diversity to those upholding the cruelties of slavery. Stating that "racial discrimination is never benign," he said: "The University's professed good intentions cannot excuse its outright racial discrimination any more than such intentions justified the now denounced arguments of slaveholders and segregationists."

Some groups supporting affirmative action, such as the NAACP Legal Defense and Education Fund, viewed the court ruling as a victory for race-based university admissions programs. The opposite, however, is far more likely.

Edward Blum, the driving force behind the challenge to the University of Texas program, says that the decision "begins the restoration of the original color-blind principles to our nation's civil rights laws," and will both hasten the end of racial preferences in schools across the country and unleash a flood of lawsuits. Under the justices' requirement that racial distinctions in admissions be subjected to a tough constitutional test, he said, "it is very unlikely that most institutions will be able to overcome these hurdles."

Abigail Fisher, the plaintiff who brought the challenge to the University of Texas program, said: "I am grateful to the justices for moving the nation closer to the day when a student's race isn't used at all in college admissions."

Race-based admissions policies are on the way out. Eight states have already banned consideration of race in admissions to their public colleges: Arizona, California, Florida, Michigan, New Hampshire, Nebraska, Oklahoma and Washington, though Michigan's law has been suspended by a court ruling and will be weighed by the Supreme Court later this year.

Beyond this, some analysts say that initiatives already in use show that it is possible to assemble a balanced class of incoming students by focusing on factors such as family income and geography instead of skin color and ethnicity.

By imposing stricter standards on how courts review affirmative action plans, the court sent a clear signal that the era of explicitly race-based affirmative action is coming to an end. These programs, in fact, have perpetuated new forms of racism. Thomas Espenshade of Princeton reviewed admissions data from 1997 and found that Asian applicants had to outscore African-Americans by 450 points on their SATs to have an equal chance of admission.

In their book "Mismatch," Richard Sander and Stuart Taylor, Jr. show that race-based admissions policies produce a situation in which some minority applicants are admitted to schools where they otherwise would not be accepted. As a result, they often find themselves stuck in the bottom of their classes. Black law students are four times more likely to fail bar exams with such a mismatch, according to Sander and Taylor.

In his book "Intellectuals And Race," Thomas Sowell, the respected black economist, now at the Hoover Institution, notes that, "A growing body of empirical data shows that black students mismatched with the particular colleges or universities they attend fail or drop out more often than other students at those institutions ---and more often than black students with the same test scores or other academic qualifications as themselves who attend institutions where the other students are on a similar academic level. The problem is not that these black students are 'unqualified' to be in a college or university. They may be highly qualified to be in some college or university but are mismatched with the particular college or university that has admitted them for the sake of demographic 'diversity' by disregarding test scores and other academic qualifications."

A study at M.I.T., for example, showed that the average black student there had math SAT scores in the top 10 per cent nationwide---and in the bottom 10 per cent at M.I.T. Nearly one-fourth of these high-ranking black students failed to graduate from M.I.T. "More generally," writes Sowell, "students with a given mathematics level succeeded in getting science, technology, engineering and mathematics degrees more often at academic institutions where the other students were at comparable academic levels...In short, ignoring test scores and other academic qualifications when admitting minority students turns minority students with all the qualifications for success into artificially induced failures, by mismatching them with the institutions that admit them under lower standards."

Americans overwhelmingly oppose race-based college admissions. According to a Washington Post-ABC News poll released in June, 76 per cent of Americans oppose allowing universities to consider race when selecting students. Blacks and Hispanics are as opposed to these programs as whites. According to THE WASHINGTON POST, "The wide opposition to affirmative action in college admissions spans partisan and racial divides. Nearly eight in ten whites and African Americans and almost seven in ten Hispanics oppose allowing universities to use race as a factor. And although Democrats are more supportive than Republicans of the practice, at least two-thirds of Democrats, Republicans and Independents oppose it."

Many black Americans have vocally opposed affirmative action as a new form of racism. Professor Shelby Steele, for example, declares that, "By making black the color of preference, these mandates have reburdened society with the very marriage of color and preference (in reverse) that we set out to eradicate...I think one of the most troubling effects of racial preferences for blacks is a kind of demoralization. Under affirmative action, the quality that earns us preferential treatment is an implied inferiority. The effect of preferential treatment---the lowering of normal standards to increase black representation---puts blacks at war with an expanded realm of debilitating doubt, so that the doubt itself becomes an unrecognized preoccupation that undermines their ability to perform."

The latest Supreme Court decision leaves the question of the constitutionality of race-based college admissions policies yet to be finally resolved. It does, however, raise the bar for such programs. Any such program must, according to Justice Kennedy, satisfy the court that "no workable race-neutral alternative would produce the educational benefits of diversity." This is likely to be a difficult---if not impossible---standard to meet.

In 2007, Chief Justice John Roberts declared that, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." The Court has taken a step in that direction. It is inevitable that it will embrace that genuinely color-blind standard in the future, which will be a genuine victory for all Americans.

Salem-News.com contributor Allan C. Brownfeld received his B.A. degree from the College of William and Mary, his J.D. degree from the Marshall-Wythe School of Law of the College of William and Mary and his M.A. in Government and Politics from the University of Maryland. He has served on the faculties of St. Stephen's Episcopal School, Alexandria, Virginia, and the University College of the University of Maryland.

The recipient of a Wall Street Journal Foundation Award, Mr. Brownfeld has written for such newspapers as THE HOUSTON PRESS, THE RICHMOND TIMES DISPATCH, THE WASHINGTON EVENING STAR and THE CINCINNATI ENQUIRER. For many years he wrote three columns a week for such newspapers as THE PHOENIX GAZETTE, THE MANCHESTER UNION LEADER, and THE ORANGE COUNTY REGISTER. His weekly column appeared for more than a decade in ROLL CALL, the newspaper of Capitol Hill. His articles have appeared in such journals as THE YALE REVIEW, THE TEXAS QUARTERLY, THE NORTH AMERICAN REVIEW, ORBIS and MODERN AGE.

Mr. Brownfeld served as a member of the staff of the U.S. Senate Internal Security Subcommittee and was the author of that committee's 250-page study of the New Left. He has also served as Assistant to the Research Director of the House Republican Conference and as a consultant to such members of Congress as Reps. Phil Crane (R-Il) and Jack Kemp (R-NY) and to the Vice President of the United States.

He is a former editor of THE NEW GUARD and PRIVATE PRACTICE, the journal of the Congress of County Medical Societies and has served as a Contributing Editor AMERICA'S FUTURE and HUMAN EVENTS. He served as Washington correspondent for the London-based publications, JANE'S ISLAMIC AFFAIRS ANALYST and JANE'S TERRORISM REPORT. His articles regularly appear in newspapers and magazines in England, South Africa, Sweden, the Netherlands and other countries. You can write to Allan at abrownfeld@gmail.com