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July 2, 2013

Divining the supremes on race

http://www.jewishjournal.com/opinion/article/fisher_v._university_of_texas_divining_the_supremes_on_race

Abigail Fisher, right, a white suburban Houston student who asserted she was wrongly rejected by the University of Texas at Austin while minority students with similar grades and test scores were admitted thanks to the admissions policy, and Edward Blum, left, director of the Project on Fair Representation, speak at a news conference in Washington, on June 24. Photo by Jonathan Ernst/Reuters

Abigail Fisher, right, a white suburban Houston student who asserted she was wrongly rejected by the University of Texas at Austin while minority students with similar grades and test scores were admitted thanks to the admissions policy, and Edward Blum, left, director of the Project on Fair Representation, speak at a news conference in Washington, on June 24. Photo by Jonathan Ernst/Reuters

Last week, the U.S. Supreme Court handed down its decision in the long-anticipated case of Fisher v. University of Texas. The thrust of the majority’s logic suggests that the advocates of race-conscious affirmative action will have a tough row to hoe from here on out.

The advocates of race-conscious affirmative action programs in university admissions can take solace in the fact that the Supreme Court did not overrule either the Bakke (1978) or the Grutter (2003) cases, the long-standing precedents that allow race to be a factor in university admissions.

The fear among affirmative-action supporters was that, in agreeing to take the Fisher case, the Supreme Court was looking to move away from affirmative action and would explicitly bar race as a factor in admissions. To the extent that the seven justices did not rule out the use of race as a consideration in admissions and a majority clearly endorse the notion that achieving diversity in admissions is a “compelling state interest,” the proponents of race-conscious admissions have to be breathing a huge sigh of relief.

But that sigh will be short-lived and followed by shortness of breath induced by how the Supreme Court has constrained the use of race in admissions at state-run universities. What the Supreme Court concedes in terms of race consciousness, it takes away in language that severely limits, if not practically bars, the actual use of race as a criterion. This discussion is based on the assumption, well founded or not, that university administrators are not lying about their race-neutral methods.

While the Supreme Court, as noted above, allows that there is a “compelling state interest” in achieving diversity in admissions, it requires that the methods used to achieve that interest must withstand “strict scrutiny” — the highest level of justification in the Supreme Court’s equal protection jurisprudence. Being “reasonable” isn’t sufficient; the methods employed must be “permissible and substantial” and “necessary to the accomplishment of its purpose” (these parameters are enumerated in existing precedents).

The kicker that must give affirmative-action supporters heartburn is the Supreme Court’s explicit language that for a program to be considered “necessary to the accomplishment of its purpose” (i.e., diversity in admissions) there must be “no workable race-neutral alternatives [that] would produce the educational benefits of diversity.” The university has the “ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice.” Race-based programs are a last resort to be invoked only after other, less-onerous alternatives prove themselves inadequate to the task. The burden is on the program’s proponents to prove its way is the only effective way.

The Supreme Court’s logic makes clear that giving or denying benefits on the basis of race requires the highest level of scrutiny and justification and is only permitted if nothing else works. A principle that has been lost on too many governmental programs in recent years that view considerations of race as indistinguishable from other less divisive criteria.

In recent months, there has been a good deal of attention focused on race-neutral alternatives to affirmative action that achieve diversity that are, I suspect, what the Supreme Court had in mind. The New York Times has had several articles over the past few months, and Community Advocates has focused on these programs in op-eds for the past several years. The socioeconomically-based affirmative-action programs adopted by the University of California have garnered most of the attention.

Today, the numbers of minorities admitted to the UC system over all in race-neutral programs exceed the number of enrollees when race was a factor in admissions (pre-1996). This is the “race-neutral alternative” that the Supreme Court probably had in mind.

Ironically, the University of California — which gave birth to the seminal Bakke case — may, by inadvertence, be providing the template for undoing over three decades of race-based admissions that evolved from its programs and its case.

In the lone dissent, Justice Ruth Bader Ginsburg argued in favor of allowing explicit race-based admissions but issued a warning that is well taken: Programs that purport to be race neutral should not be thinly disguised race-based programs that simply misrepresent their methodology. She warned that the game of deception, such as it was, is over; “only an ostrich could regard the supposedly neutral alternatives as race unconscious.” She warned that “I remain convinced, those that candidly disclose their consideration of race [are] preferable to those that conceal it.” 

The Fisher case is a reasonable holding that allows the ultimate goal of a diverse student body to remain while requiring that preferences on the basis of race be a last, desperate resort only to be employed when all else fails and no race-neutral alternative exists. A compromise that will prove itself wise if it is honestly implemented and enforced. 


David A. Lehrer is the president of Community Advocates Inc. (cai-la.org), a human relations think tank chaired by former mayor Richard J. Riordan.

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