Supreme Court Determined to Kill Affirmative Action
George E. Curry | 4/3/2013, 4:37 p.m.
A decade after carefully ruling in two University of Michigan cases - striking down the undergraduate admissions procedures and upholding those implemented by the law school - the U.S. Supreme Court seems on course to strike down even the mildest form of affirmative action admissions in higher education.
After oral arguments in a case brought by a White student who was denied admission to the University of Texas at Austin, the justices are expected to hand down a ruling in late June or early July. Rather than await the outcome of that case, last week the court accepted another challenge to affirmative action in Michigan, which will not be argued until the October term.
The fact that the court accepted the Texas and Michigan cases, after higher education officials thought the matter was settled law, is a clear indication that the conservative-leaning court plans to eviscerate race- and gender-conscious college admissions programs, no matter how conservative or narrowly drawn. If the court had other intentions, it would have left lower court rulings favorable to affirmative action in the two cases stand.
Fisher v. University of Texas at Austin, the case the court is expected to rule on in late June, was brought by Abigail Fisher, a 22-year-old White woman who was rejected for admission in the fall of 2008. Under the University of Texas admissions program, the top 10 percent of each high school graduating class was guaranteed admission to the state's flagship university. When Fisher applied, 90 percent of the students were selected that way.
The other 10 percent of applicants were admitted based on a variety of factors, including extracurricular activities, awards and honors, work experience, socioeconomic status, standardized test scores and race. Of all of those factors, Fisher decided to challenge admissions because the university considered race as one of many factors.
"Race is only one modest factor among many others weighed; it is considered only in an individualized and contextual way... and admissions officers do not know an applicant's race when they decide [who] to admit in UT's process," the university argued in its brief.
University of Texas officials said if the modest affirmative action program had not been in place, Fisher still would not have qualified for admission. The district and appeals courts agreed, ruling against Fisher. But the Supreme Court decided to accept the case anyway.
Even more surprising was the court's decision to accept another Michigan case, Schulette v. Coalition to Defend Affirmative Action, while Fisher is still pending.
After the Supreme Court upheld affirmative action in the University of Michigan law school case, 58 percent of voters adopted Proposal 2 in 2006, which prohibited discrimination or preferential treatment in public education, government contracting and public employment based on race, ethnicity or gender. It was modeled after a ballot measure passed by California voters in 1996.
Supporters of affirmative action in Michigan, lodged a legal challenge to Proposal 2, paving the path for the U.S. 6th Circuit Court of Appeals in Cincinnati to rule 8-7 that ballot initiative, which amended the state constitution, violated the federal Constitution's Equal Protection Clause.