Feb. 26, 2012

Affirmative Action: Conservative Supreme Court Offers Little Hope for Survival

Special to the Trice Edney News Wire from the Richmond Free Press

(TriceEdneyWire.com) - Affirmative action once again appears to be on the chopping block.

The U.S. Supreme Court this week triggered nerve-jangling concern about the future of the decades-old policy. The nation’s highest court did so by agreeing to consider afresh whether race can be used in university admissions — just nine years after approving the use of affirmative action in a landmark decision in which now-retired Justice Sandra Day O’Connor played a key role.

The justices decided Feb. 21 to revisit the potentially divisive issue. They accepted a case challenging the admission policy the University of Texas employs to ensure racial and ethnic diversity in its undergraduate classes.

At issue: Whether the use of affirmative action violates the 14th Amendment guarantee of equal protection for White students competing with Black and other minority students for places in the freshman class at the state’s flagship university.

The agreement to hear the case to many legal experts is like a loud clanging bell tolling the court’s readiness to sweep affirmative action from the nation’s campuses — a move the court’s most conservative justice, Clarence Thomas, has long supported. Justice Thomas is the lone black member among the nine justices.

The fact the court is taking this case “is troubling news for those who support efforts to diversify institutions of higher education,” said Theodore M. “Ted” Shaw, a Columbia Law School professor and former director-counsel of the NAACP Legal Defense and Education Fund.

Shaw believes that Justice Thomas and the rest of the conservative majority, led by Chief Justice John Roberts, has

taken the case so it can reverse the 2003 decision and outlaw policies dating back to the 1960s that increase educational access opportunities for African-Americans, Hispanics and other disadvantaged minorities. He noted that the Roberts Court in 2007 “struck down voluntary school desegregation efforts.”

In that ruling, he said that the court “evinced hostility to race-conscious diversity efforts.”

The Texas case began when lead plaintiff Abigail Fisher and another white teenager were denied admission to the University of Texas and filed a constitutional challenge to race-based admissions nearly four years ago. Both are set to graduate from other schools this year.

Texas’ defense of its policies have been upheld in lower federal courts that have found the university created a program based on the high court’s groundbreaking decision that upheld a diversity plan of the University of Michigan Law School. In that 5-4 decision in Grutter v. Bollinger, the court established for the first time that a university’s compelling interest in creating classroom diversity justified the use of affirmative action.

Then-Justice O’Connor cast the decisive fifth vote. She wrote in her decision that schools currently are entitled to maintain such race-based policies to promote diversity, but expected the policies to be phased out as unnecessary within 25 years. She retired in 2006 and was replaced by a more conservative justice, Samuel Alito, who has disdained race-based policies as a court member.

Only eight justices will hear the case now expected to be election campaign. Justice Elena Kagan already has indicated she will not participate, likely because she worked on the Texas case as solicitor general in the Obama administration before joining the court in 2010.

With Justice O’Connor gone and Justice Kagan out, Justice Anthony Kennedy’s potential swing vote becomes essential in an eight-member court, Shaw said.

If Justice Kennedy joins three members of the liberal block, that would create an evenly divided court and affirm the lower court’s ruling upholding the Texas race-based plan, he said. If Justice Kennedy joins four justices in the conservative bloc to form a majority against the Texas plan, he said, then affirmative action is in deep trouble.

Some think that the court could limit its ruling to the University of Texas if the court is simply troubled by the university’s broad use of race to attempt to achieve diversity in every classroom at the university.

At the University of Texas, the majority of freshmen are admitted by means of a state law that requires race-neutral admission for the top 10 percent of every Texas high school class. The university uses affirmative action to fill any remaining slots. Shaw, though, is gloomily certain that this the new case is the one that the court’s “affirmative action opponents have been looking for to overturn Grutter.”

Others are cheering that thought. “The court is right to take the case,” said Roger Clegg, president of the Center for Equal Opportunity and a longtime critic of race-based admissions programs.

“As our nation becomes more and more multiracial and multiethnic” Clegg said, “it becomes more and more untenable for our public institutions to label, sort, and discriminate on the basis of skin color and national origin.”

That’s also the view of Joshua Thompson of the Pacific Legal Foundation, which also wants the court to stamp out affirmative action. “A policy of race-based preferences and discrimination in admissions is not just unfair, it is unconstitutional under the equal protection clause of the 14th Amendment.”