Cara L. Gallagher, Weekend Contributor
When SCOTUS orders a case back to a lower court it’s rare that the case garners the same attention it received when it was in the Supreme Court. But Fisher v. The University of Texas at Austin, a critical case that still has the potential to uproot affirmative action programs in public universities – one that beckoned Justice Sandra Day O’Connor to the SCOTUS pews on decision day in June of 2013 – is one you follow post-SCOTUS. Perhaps Justice O’Connor traveled all that way to throw shade to those justices likely to upend her landmark 2003 affirmative action decision, Grutter v. Bollinger. Although the spirit of Grutter remained intact, the majority’s 7-1 decision to remand the case back to a lower court was done so with explicit instruction that the University prove they’d satisfied the necessary strict scrutiny test. The same attorneys who argued the case before the SCOTUS in 2013 stayed on the case arguing before a 3-judge panel in the U.S. Court of Appeals for the 5th Circuit.
On November 13, 2013 they, along with case namesake Abigail Fisher and the man who lobbied for the case to get into SCOTUS, Edward Blum, were back court.
Most (80%) applicants to the University get accepted through a Texas legislative program called the Top Ten Percent Plan (TTPP). If you’re in the top ten percent of your public high school, you’re automatically accepted to the UT. Abigail Fisher had solid grades but attended an academically competitive school and wasn’t a top ten-er (she was, however, in the top 12%). Fisher was pushed into the general applicant pool where a holistic admissions process is used. Because Texas public schools have become increasingly segregated, many of which are majority-minority schools, the TTPP has diversified UT’s student body in a seemingly race-neutral way. But such a plan hasn’t achieved the University’s goal of creating a critical mass of diverse students. One way the university works to achieve that goal is by employing a holistic process to admit students for the remaining (20%) seats. One subcategory, among six primary categories, uses race as a factor in determining admission through this method.
According to a piece from Joan Biskupic in Reuters, the decision would likely come down to one swing vote on the 3-judge panel. “During an hour of arguments, it appeared that the three-judge panel, which previously had ruled unanimously in favor of the university, might splinter. Judge Emilio Garza, an appointee of Republican President George H.W. Bush, appeared sympathetic to Rein’s claim that the university cannot justify using race in its decisions. Judge Patrick Higginbotham, an appointee of Republican President Ronald Reagan, implicitly defended the university. The third judge, Carolyn Dineen King, appointed by President Jimmy Carter, a Democrat, offered little clue in her few questions as to whether she might reverse her prior vote for the policy.”
It did come down to one swing vote when on July 15, 2014 Judges King and, likely swing voter, Higginbotham decided UT’s use of race for those in the holistic admissions process was narrowly tailored. Judges King and Higginbotham were satisfied that the UT could to use race as one of several factors, in the admissions process in order to further the university’s goal of creating a critical mass of diverse students.
“In sum, it is suggested that while holistic review may be a necessary and ameliorating complement to the Top Ten Percent Plan, UT Austin has not shown that its holistic review need include any reference to race, this because the Plan produces sufficient numbers of minorities for critical mass. This contention views minorities as a group, abjuring the focus upon individuals—each person’s unique potential. Race is relevant to minority and non-minority, notably when candidates have flourished as a minority in their school—whether they are white or black. Grutter reaffirmed that “[j]ust as growing up in a particular region or having particular professional experiences is likely to affect an individual’s views, so too is one’s own, unique experience of being a racial minority in a society, like our own, in which race still matters.” We are persuaded that to deny UT Austin its limited use of race in its search for holistic diversity would hobble the richness of the educational experience in contradiction of the plain teachings of Bakke and Grutter.”
Judge Garza was not persuaded that race-conscious holistic admissions processes are necessary nor have any measurable effect on achieving actual diversity.
“By accepting the University’s standing presumption that minority students admitted under the Top Ten Percent Law do not possess the characteristics necessary to achieve a campus environment defined by “qualitative diversity,” the majority engages in the very stereotyping that the Equal Protection Clause abhors.
In short, the University has obscured its use of race to the point that even its own officers cannot explain the impact of race on admission to competitive colleges. If race is indeed without a discernable impact, the University cannot carry its burden of proving that race-conscious holistic review is necessary to achieving classroom diversity (or, for that matter, any kind of diversity). Because the role played by race in the admissions decision is essentially unknowable, I cannot find that these racial classifications are necessary or narrowly tailored to achieving the University’s interest in diversity.”
On November 12, 2014 ten of the fifteen judges on the 5th Circuit bench voted not to hear an en banc appeal by Fisher’s attorneys ostensibly dealing a final blow to affirmative action opponents and to the most important affirmative action case in ten years.
Maybe.
Five days later, two complaints were filed against the University of North Carolina – Chapel Hill and Harvard University for their race-based admissions processes. The cases were filed with the help of The Project on Fair Representation, the same organization that vetted Abigail Fisher’s case for the Supreme Court. We may also see a return of the Fisher case to the Supreme Court. Edward Blum, director of The Project, has plans to appeal the 5th Circuit’s decision back to the SCOTUS.
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The lack of diversity in your life and your one dimensional view of how other people might live or think.
Stuck in the 50’s so to speak. PS. I really don’t think you are in your 70’s
Re: Segregated Schools
The Brown case in the 50’s ended official segregation and rightly so. Current segregation is by choice: demographic make up of people in the proximity of the schools. When you have any group that self segregates by all living in one community, then you will have schools that reflect the population that surrounds it.
Unless you go to extremes to “force” integration, by forcing students to attend schools far far away from their homes (busing) in the hopes that mixing up the demographics will magically solve the problem, the schools will remain a reflection of the population. That so called solution didn’t work out so well.
This is why my schools, when I was young, were so diverse. The population surrounding the area was rapidly growing and growing with a greatly diverse group of people. There was no plan or central governing group that made it this way. It just was because people wanted to move to the area and saw the potential for personal growth and personal advancement for themselves and their families.
Who wants to move to Detroit? Who wants to move to East L.A.?
If you want diversity, you need to make the area and the society surrounding the school attractive to business, attractive to people who want to work, affordable, and make the area a safe place to live in as well as a healthy environment.
DBQ, “Really? If you are..then that would explain a lot.”
Exactly what does it explain?
Olly,
Every school has diversity, it all depends on what you are looking for. If your taught to look for race then that’s what you’ll find. If your taught to look for jocks or nerds or wealth or geeks or thumpers or whatever, then you’ll find it.
bettykath,
How do you know your experience is more common? Why is that even an important distinction?
———————-
You’re right, of course, that there’s diversity in that we are not all alike but the topic is affirmative action in college admissions. Also, I was responding to DBQ who identified several groups by race and ethnicity.
Considering that Brown v Board of Education was decided in 1954, there were a loooot of schools that were segregated then. Today, segregated schools are still a problem.
http://www.usatoday.com/story/news/nation-now/2014/05/15/school-segregation-civil-rights-project/9115823/
http://www.ascd.org/publications/educational-leadership/may13/vol70/num08/Why-Our-Schools-Are-Segregated.aspx
Isaac,
I appreciate the post and if I’m reading you correctly would agree the bureaucracy of education is killing the industry and any reasonable expectation of reform.
How exactly is “the level playing field” measured? When will this institutionalized discrimination be completed because we certainly don’t want the field to be unbalanced the other way? As W. Edwards Deming said: “How could we know?”
Affirmative action was and continues to be a necessary part of the evening of the playing field. Before affirmative action there were far fewer examples of success in the professions for minority children to reference than now. Success is created in layers. The first layer is understanding that it is possible. When minority kids see lawyers, doctors, and other professionals of their race or religion that is a positive layer of possibility.
The goal, however, should be to arrive at a moment when this ‘bandaid’ is no longer necessary. To do that society must focus on the other end of the education history of the kids applying for schools of higher learning and/or jobs. Most kids fail because they are shuffled along under a combination of neglect, adherence to jingoes like ‘no child left behind’, or dysfunctional education systems. There is too much control of the US public education system by those in the levels of administration and politics and not enough focus on where it really happens, with the teachers. Teachers must be empowered to be held responsible. Teachers in the more successful systems of more advanced countries are better trained, better paid, and more responsible for the curriculum and teaching theory. As a former teacher, albeit for only two years, I saw teachers treated in front of their students as unimportant in almost all facets. Directives came down from the distance on high to be implemented when they should have been created at the point of need.
The dysfunction of the US parallels its desire for many levels of government, yet the most important level of government is that of the education system by the teachers and that is not seen as having any importance. America should simply look at the successes of the world for models. As someone who grew up as well as raised a child and studied in Canada, France, as well as the US, it is not hard to see what is missing here.
It is not an either or situation. It is a situation of many layers each of which requires an approach peculiar to its problems and advantages. Affirmative action was one of the most pertinent and therefore effective moves regarding a multi layered problem, but one only.
isaac – I would say that the playing field is already level and is over-tilted for some races (black, Hispanic) and under-tilted for whites and Asians. Shouldn’t we all be playing on the same field? How about we handicap the whites in your profession? All whites must wear blinders 50% of the time so they are competitive with other races in your field. How about the NBA? Blacks are over represented in the NBA so we need to get rid of about 70% of the ones currently playing and replace them with whites, Asians and Hispanics.
See how this works? It cannot just be colleges, police departments and fire departments. It has to be everybody.
It’s an observation Zack. You implied there are posts in this thread that are evidence of racism; identify them so we can determine if you are correct or simply delusional.
I’ll wait.
Yes Zack, it’s alive and well; and taking up residence in your head. Seriously, if you have some guilt you’re dealing with as a result of your behavior or that of your ancestors then by all means, seek help.
Betty Kath.
You were in High School in the 50’s?
I did the math and if you were 15 in 1955 (mid 50’s) you are about 75 years old now. Really?
If you are..then that would explain a lot.
Every school has diversity, it all depends on what you are looking for. If your taught to look for race then that’s what you’ll find. If your taught to look for jocks or nerds or wealth or geeks or thumpers or whatever, then you’ll find it.
bettykath,
How do you know your experience is more common? Why is that even an important distinction?
DBQ, It’s too bad that all schools don’t have the kind of diversity that yours had. Considering the segregation of our schools then (1950s) and now I think my experience is more common than yours.
Betty Kath: When I was in high school, there were two Black girls and one Jewish boy.
Interesting. Perhaps this explains the different outlooks that we “may” have and why diversity is “no big deal to me”. Nothing special to be all veklempt about.
When I was in high school….graduating class was over 250 students…..we had a big population of Mexicans (this was before Hispanic was invented) lots of Chinese, many Japanese, Blacks, Italians and of course the various mixes of Polish, Irish, and the redneck ranchers kids. We were as diverse as you could possibly imagine. My best girlfriends in school were Chinese (my lab partner) and Japanese (my singing partner we did USO shows during the Vietnam times). I dated mostly Japanese and Mexican guys. Not for any politically correct diversity reasons…..those didn’t exist then, but because I thought they were sexy. 🙂 Everyone got along..mostly.
Diversity was normal. Everyone of us was a minority because there were so many of us all thrown together.
P.S.
I remind him mine is curly to see his response and just says mine is a different color. 🙂
I’m curious to see at what age my 6 year old stops referring to the black children across the street and and at his school as the kids with curly hair.
When I was in high school, there were two Black girls and one Jewish boy. All others were white, protestant or Catholic. Needless to say, I didn’t know much about diversity. In college, I interacted with many Black, Asian, and Jewish students. I benefited greatly by that exposure.
@ Don de Drain
I purposely inject politics into the discussion, even though the subject matter of the course (tax procedure) is one that most people would conclude is dry, dull and not at all connected with politics. I demonstrate that issues of tax procedure are intimately connected with politics.
Firstly. I would not find tax procedure dull or dry as that was part of my previous career. (Retired financial planner, stock broker and portfolio analysis)
However, the insertion of politics into a topic where it is relevant is not the issue. In many cases it is important to get the full view of the subject and is important into the topic. Political focus on tax policy is relevant as long as the focus is balanced and not ideologically driven.
Where I draw the line, and it seems you do as well, is in the one sided view of issues and proselytizing.
I don’t like Profs who merely spout their view of the world in class and then demand unfettered obeisance by grading according to how well you regurgitate their views. They have my utter contempt, unless the nature of the subject matter is one that requires regurgitation, such as classes involving technical issues.
100% agreement with the above.
Secondly: there are many topics in academia that are not cut and dried; like math or other technical courses. Interpretation of literature, poetry and most of the social sciences are still subject to opinion and debate. When professors stifle debate or even punish students for disagreement, they are no longer teachers,…….but have become propagandist preachers.
Society is not color blind, and college admission programs which promote those who are disadvantaged should not ignore race and ethnic origin. Nor should they rely on it exclusively.
Exactly. And to bring it back to my point about the statistics of the top 10% in each school. While that sounds fair. In reality based on the demographic and economic conditions in each individual school you are going to end up with a NOT diverse selection based on the population as a whole.
(Can’t help it….science and math are the things that intrigue and motivate me….not emotional decisions based on what sounds fair)
DBQ-
I’m an adjunct prof at a law school. I purposely inject politics into the discussion, even though the subject matter of the course (tax procedure) is one that most people would conclude is dry, dull and not at all connected with politics. I demonstrate that issues of tax procedure are intimately connected with politics. (For example, in the news there have been apparent wrongful disclosures of tax return information of certain taxpayers in violation of 6103 of the Code , and the ACA regulations which are the focus in King v. Burwell [now before the Supremes] were promulgated by the IRS.) Interestingly, when I talk to students who have completed my class and eventually ask them what they think my own political philosophy is, I get a wide variety of answers. My belief is that injecting politics into the classroom is both desirable and necessary to tie the subject matter to the real world. You just have to do it in an intelligent manner.
For college, I want professors who teach students how to think. (We need more of that in high school as well.) The professor’s ideology is normally of marginal relevance, although there might be exceptions in the case of those who improperly inject their ideology into the classroom. I don’t like Profs who merely spout their view of the world in class and then demand unfettered obeisance by grading according to how well you regurgitate their views. They have my utter contempt, unless the nature of the subject matter is one that requires regurgitation, such as classes involving technical issues.
My favorite college class involved interpreting poems. Students had to interpret them by performing them (i.e., the poem was the script and the students performed before the class). Our prof insisted that there was a “best” interpretation for every poem (without telling us in advance what she thought was the “best interpretation), even though many, if not all, were susceptible of multiple interpretations. The Prof was a complete ball-buster, and I loved the class.
The admissions process is a whole different world from the teaching process, however. I believe that colleges and universities should promote upward mobility of persons who have been previously “disadvantaged.” Deciding the degree to which this done, and how it is done, are both difficult discussions. But it is colossal mistake for colleges and universities to not promote, to some degree, upward mobility of those who are “disadvantaged” in the admissions process.
I also think it is inappropriate to be completely “color blind” in promoting upward mobility. There are many in the US who are discriminated against based on race and ethnicity. I don’t doubt that there are those who themselves do their best to conduct their lives without discriminating based on race and ethnicity and believe that colleges should be “color blind” in this context. Just as there are those out there who will use false claims of discrimination to further their own ends. But there are plenty of racial bigots out there who hide behind the skirts of those who promote “color blindness.” Society is not color blind, and college admission programs which promote those who are disadvantaged should not ignore race and ethnic origin. Nor should they rely on it exclusively.
As confusing as the sentencing guidelines are, I clearly do not understand how it is constitutional to sentence generations of innocent citizens for crimes for which they have not been charged or given a fair trial.
One aspect of affirmative action was to make up for past crimes. Like when Mizzou was white only. Like when I was a kid. Well, Mizzoura has made up a bit for forty some years or so and y’all wanna call it even and crime paid for.
Maybe. But, that is an aspect of it not discussed above.
What ever happened to Lloyd Gaines? Killed by the Klan?
People go to college for many different reasons – if we hope to succeed as a nation – we need to go to college for the right reasons – I’ll leave it to the voter to determine those right reasons – after all, life is not all fun & games – sooner or later we shall all have our time in the pit & in need of the best among us. Nam et ipsa scientia potestas est
Regarding the honorable, well paying and much needed tradesmen. People not in the incestuous education industry should decide. The education industry has been crapping on boys since feminists took over the schools of education. We need to clean house, and get a more diverse teaching corp., not just upper middle class white women.