Affirmative Action in Higher Education Lives After Today…For Now
Monday June 24, 2013
The Supreme Court just decided the Fisher v Texas case regarding the use of race as a factor in admissions policies in college and university admissions processes. The University of Texas adopted a plan to achieve student body diversity that was patterned after the plan approved by the Court in Grutter v Bollinger in 2003. "The Texas percentage plan was adopted because many regions of the state, school districts and high schools in Texas are still predominately composed of people from a single racial or ethnic group. Because of the persistence of this segregation, admitting the top 10% of the all high schools would provide a diverse population and ensure that a large well-qualified pool of minority students was admitted to Texas universities." (See House Research Organization, Bill Analysis HB 588, pp4-5 (April 1997)).
According to the lone dissenting opinion issued by Justice Ginsburg: "...as for holistic review, if universities cannot explicitly include race as a factor, many may 'resort to camouflage' to maintain their minority enrollment." I have several times explained why government actors including state universities, need not be blind to the lingering effects of 'an overtly discriminatory past' the legacy of centuries of law-sanctioned inequality...I remain convinced, 'those that candidly disclose their consideration of race [are] preferable to those that conceal it.'"
We agree with Justice Ginsburg. There was no reason to remand this case to the lower Court of Appeals asking for proof that the policy met the standard of "strict scrutiny". As Justice Ginsburg observed a decade ago, the use of race in admissions need not be strictly scrutinized when the category is used to include historically-excluded minority groups. To date, the courts have not applied the strict scrutiny review standard to claims of gender discrimination. We should not apply it in this context, either.
We can still use affirmative action in higher education. We are disappointed in the Court's ruling that the lower court did not use a strict enough standard in reviewing the Fisher Case. However, we are pleased that the Court did uphold the principles in the Grutter case, indicating that a university can use an affirmative action plan to achieve diversity when it is necessary to do so. This plan must remain as a tool for universities to achieve diversity in higher education until the playing field is level for all college-bound students.
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