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Affirmative Action on Trial Once Again

Affirmative Action on Trial Once Again

On December 9, the Supreme Court heard oral arguments in the affirmative action case Fisher v. University of Texas at Austin. The question in the Fisher case is whether the use of race as one of a number of factors in the University’s holistic admissions evaluation process is a violation of the Fourteenth Amendment’s Equal Protection Clause. At stake, however, is not just UT’s particular racial diversity formula, but also the wider acceptance of university affirmative action programs.

This is not the first time that Fisher v. University of Texas at Austin has come before the Supreme Court. In 2013, the Court ruled in a 7-1 decision (Justice Elena Kagan recused herself, and is recusing herself this time around, too) to send the case back to the Fifth Circuit Court, arguing that the lower court had failed to apply the strict scrutiny standard to the admissions program. The Fifth Circuit eventually determined that the admissions program did indeed meet the requirements of strict scrutiny – the program is narrowly tailored, it advances a compelling government interest and it uses the least restrictive means of furthering that interest – and decided in favor of UT Austin. Fisher appealed the decision, and the case is now back at the Supreme Court.

The often intense and heated oral arguments in this second round of the Fisher case reflected a divide in the Supreme Court around the effectiveness and importance of university affirmative action programs. Much of the discussion focused on how closely the UT policy fits the precedent for appropriate affirmative action programs as decided in the previous court cases Regents of the University of California v. Bakke and Grutter v. Bollinger. Those cases outlawed racial quota systems and upheld the constitutionality of programs in which race is one of a number of factors used to evaluate candidates on an individual basis, respectively.

Chief Justice John Roberts noted that the Grutter decision handed down 12 years ago had forecasted that affirmative action programs would last only 25 more years and asked: “Are we going to hit this deadline? Is this going to be done… in 12 years?” Roberts also questioned the role of diversity in strengthening or otherwise improving science classes, like physics.

Perhaps the most controversial comment of the day, however, came from Justice Antonin Scalia. In response to a discussion about the importance of increasing racial diversity, Scalia observed: “There are … those who contend that it does not benefit African-Americans to … get them into the University of Texas where they will not do well, as opposed to having them go to a less-advanced school…” His statement immediately drew negative responses from pro-affirmative action groups like the NAACP Legal Defense Fund  and some members of Congress.

The Union for Reform Judaism, the Central Conference of American Rabbis and the Women of Reform Judaism joined the American Jewish Committee’s brief of amici curiae in support of the UT admissions policy. The brief reaffirmed the URJ’s long commitment to non-quota-based affirmative action programs and argued that “Diversity in higher education is of vital importance not only to schools themselves, but also to our society…” The brief also recommended that the Court maintain the requirements for affirmative action it developed in the Grutter decision.

At this point, there are likely three options for the Court: they could send the case back to the Fifth Circuit once again, asking for more information about the program before making a final decision; they could strike down the specifics of the affirmative action program at UT Austin while upholding the general framework for affirmative action laid out in the Grutter decision; or they could prohibit all university affirmative action programs. A ruling that upholds the UT program seems nearly impossible given the Justices’ comments during the oral arguments.

As has often been the case in recent years, the final decision will probably depend in large part on Justice Kennedy, who is considered the sole swing vote on this issue. As we await the outcome of the Fisher case, affirmative action and educational diversity, core elements of advancing a vision of racial justice, hang in the balance.

Photo Courtesy of Flickr/Phil Roeder

Adam Waters is a 2015-2016 Eisendrath Legislative Assistant at the Religious Action Center of Reform Judaism. He grew up in Coral Springs, FL, and was a member of Temple Beth Orr. Adam graduated from Brown University.

Adam Waters