Affirmative action programs at universities are expected to receive more scrutiny, potentially followed by greater volumes of civil rights litigation, after a recent U.S. Supreme Court ruling on the race-conscious admissions policies used by colleges nationwide.The 7-1 decision unfortunately avoided giving a clear-cut answer regarding the constitutionality of affirmative action on the national level, instead instructing the lower appellate court to take a closer look at the specific program before it, the one used by the University of Texas.
At issue in the case, Fisher v. University of Texas at Austin, was whether the Equal Protection Clause of the Fourteenth Amendment, including the court’s interpretation of it in Grutter v. Bollinger, allowed for the university’s use of race in undergraduate admission’s decisions.
In part, the Fourteenth Amendment holds that no state should deny any person within its jurisdiction equal protection of laws.
The plaintiff in this case was a young Caucasian woman named Abigail Fisher. She applied for undergraduate admissions to the University of Texas at Austin in 2008. Although her academic credentials exceeded those of many other minority candidates, she was denied admission on the grounds of affirmative action. Fisher subsequently sued the public university on the basis that it had denied her admission due to her race, which she contended was a violation of civil rights.
The lower court’s used the previous Grutter case as a standard, which held that institutions must give serious, good faith considerations in their decision-making processes with regard to affirmative action. Part of that consideration involves the fact that historically, minorities have been at an extreme disadvantage in these arenas.
The Fifth Circuit District Court held that the university had come to its conclusion by acting in good faith. It did not have express quotas or specified preference points and allowed for all individuals of all races to be considered at all points of the application process. Further, it was acting on its goal of promoting racial diversity in classrooms.
The court denied a re-hearing in the case, and it was ultimately appealed to the U.S. Supreme Court.
In writing for the majority, Justice Anthony M. Kennedy wrote that universities and colleges have to demonstrate that workable, available race-neutral alternatives don’t suffice in attaining the goal of educational diversity in the classroom.
In Texas, race-neutral methods are used in determining the majority of undergraduate admissions, which includes students who are at the top of their classes. However, to choose the remaining 25 percent of students, the school uses a race-conscious system.
Kennedy wrote that if schools could achieve racial diversity without such methods, then affirmative action programs might not be necessary or could be excessive. But that is a vague standard that inevitably opens the doors for future civil litigation on these matters.
The Law Offices of Ira S. Newman provides employment litigation representation in New York City, Long Island, Great Neck and throughout the area. Call 516-487-7375 or send us an e-mail.
Justices Step Up Scrutiny of Race in College Entry, June 24, 2013, By Adam Liptak, The New York Times
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