This week the Supreme Court heard arguments in Fisher v. University of Texas, brought by Abigail Fisher asking the Court to declare unconstitutional the University’s practice of using an applicant’s race to decide admission decisions. Fisher is Caucasian, and while discrimination favoring whites is illegal, discriminating against white people in public college admissions is legal. In 2003 the Supreme Court ruled that while strict quotas by race were illegal, simply favoring various non-white applicants was allowed. Due to some defects in how this case came to be however, we may never see the Court address the merits of the case at all.
According the Civil Rights Act of 1964, it is illegal to discriminate on the ground of race under any program or activity receiving federal financial assistance. Could it be more simple? You cannot legally discriminate against someone based on their race. You might think so, but you would be wrong. It turns out you can discriminate after all, but only if such discrimination is against whites or Asians, and doesn’t amount to a quota system.
The first Supreme Court case against a college discriminating against whites was University of California v. Bakke. In that case the school’s decision to simply grant a certain # of seats (16 out of 100) as minority only was held unconstitutional. The important part of the decision however was the ruling that the Civil Rights Act didn’t ban racial discrimination at all. In fact, it was just fine provided the right people were the ones being discriminated against.
Justice Stevens’ opinion in Bakke provides some interesting history about what the lawmakers who passed the Act thought about discrimination, and the use of the law to act against the interests of Caucasians, or to benefit favored minorities:
“ … The opponents feared that the term "discrimination" would be read as mandating racial quotas and "racially balanced" colleges and universities, and they pressed for a specific definition of the term in order to avoid this possibility. In response, the proponents of the legislation gave repeated assurances that the Act would be "colorblind" in its application. Senator Humphrey, the Senate floor manager for the Act, expressed this position as follows:
[T]he word "discrimination" has been used in many a court case. What it really means in the bill is a distinction in treatment . . . given to different individuals because of their different race, religion or national origin. . . .”
Unfortunately Senator Humphrey’s words are cold comfort as a majority of the Supreme Court ruled that discrimination was legal provided race was only a “factor” in the decision making process. After Bakke, university administrators made great sport of denying seats to whites and Asians in favor of Blacks and Latinos. So much so, that entirely separate admissions numbers appeared where the sole difference among the students was race. A “factor” indeed.
Opponents of racial discrimination by schools have attempted many times since Bakke to have the court reverse its position and declare race-based admissions unconstitutional. They have failed each time. Californians were able to pass a state constitutional amendment * in 1996 that banned racial discrimination in education among other areas, and Michigan did the same in 2006, but federally, race-based discrimination is perfectly legal.
The most recent Supreme Court case on the issue is Grutter v. Bollinger from 2003. In that case the court found the University of Michigan’s law school was allowed to use racial discrimination to try and reach an undefined “critical mass” of minority students.
Those arguing for an end to affirmative action may be successful this time simply because of the makeup of the Justices hearing the case. Elena Kagan, a presumed strong supporter of affirmative action was recused from this case because of her involvement in it before she joined the court. That leaves eight Justices, four of whom (Thomas, Scalia, Alito, Roberts) are likely to vote against affirmative action as legally proper under the constitution, and Kennedy is a strong candidate for voting against the university because he favors a true “strict scrutiny” standard whereby race based discrimination must be narrowly tailored to meet a compelling state interest. His dissent in Grutter makes that point:
“To be constitutional, a university’s compelling interest in a diverse student body must be achieved by a system where individual assessment is safeguarded through the entire process. 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 decisionmaking.”
All this presupposes that the Court will address the substance of the case. That is, that they will rule on whether the plan at UT is legal under the constitution. There is a reasonable likelihood that they may never do so however. The case has many defects that could be an enemy to a decision on the merits including the failure of the plaintiff to bring in future applicants as a class action, and many others thoughtfully discussed here. It is up to the Court to decide what it will decide. The Justices may decide to punt rather than let the issues play out.
Two interesting details about the case that didn’t fit above but I think worth mentioning – 1. Ms. Fisher lost in both lower courts that heard the case, and 2. The University of Texas had free representation for this case from the Texas Attorney General’s office, but turned it down in favor of spending one million dollars of university money on hiring the main author of the successful brief in the Grutter case.
*As you might guess, the administrators at Berkley haven’t let the law stop their insatiable desire to “help” blacks and Latinos by giving them admission spots which would otherwise be filled by higher achieving whites and Asians. “UC Berkeley, the original focus of the admissions debate, admitted low-scoring blacks and Latinos at twice the rate of Asians and whites with similar scores.” But of course it’s California, so who’s going to stop them?