Special Report

Affirmative Action on Life Support

Isn't it past time that Martin Luther King's dream be recognized?

By 4.6.12

Send to Kindle

Monday was a banner day in jurisprudence: On that morning, the Ninth Circuit Court of Appeals -- the most overturned Court of Appeals in the nation -- actually got one right.

In a ruling that relied more on precedent than on new analysis, the court's three-judge panel determined that California's ban on the use of race as a criterion in college admission was constitutional (both under the state and federal constitutions), notwithstanding that ending affirmative action caused a 50 percent drop in the number of minority students enrolled at UC Berkeley and UCLA.

The court addressed this same question in the 1997 case of Coalition for Economic Equity v. Wilson. In that opinion, in which they originally found the ban on affirmative action constitutional, the court was told that ending race-based admissions would cause a dramatic drop in minority enrollment. Thus, making the argument in 2012 that such a drop did indeed happen does not change the analysis.

The judges' ruling was essentially that they are not permitted to overturn the decision of a prior panel of the court given that the facts are essentially unchanged.

The opinion was forceful, including dismissing the plaintiff's claims with prejudice, meaning they cannot be brought back to court, because "it is clear, upon de novo review, that the complaint could not be saved by any amendment."

The California plaintiffs tried to base their claims in part on a 2003 Supreme Court case called Grutter v. Bollinger, in which a 5-4 majority comprising four liberals and Sandra Day O'Connor said that the University of Michigan Law School's use of race as a factor in admissions was permissible. (It was an unusual decision because it was made simultaneously with a 6-3 opinion -- including O'Connor in the majority -- in Gratz v. Bollinger, which invalidated the University of Michigan's undergraduate admissions policy of awarding extra "points" to minorities in the school's formula for admitting students.)

As the Ninth Circuit's panel properly noted, "Grutter upheld as permissible certain race-based affirmative action programs. It did not hold that such programs are constitutionally required." (Emphasis in original.)

​Grutter​ remains front and center because in February the Supreme Court agreed to hear a case called Fisher v. University of Texas at Austin in which (as in ​Grutter​) a white student, Abigail Fisher, claimed to have been denied admission to the university because preference was given to less qualified minority students.

Last year, the Fifth Circuit Court of Appeals upheld a verdict by a Texas District Court finding for the University's admissions policy and against Fisher. That ruling stood on the University's argument that there are "educational benefits that flow from diversity" (as if Einstein's Theory of Relativity or Black's Law Dictionary cares about the skin color of the person trying to understand it).

Interestingly, and portending a serious weakness in the Fifth Circuit's decision, their ruling concludes, "We are satisfied that the University's decision to reintroduce race-conscious admissions was adequately supported by the 'serious, good faith consideration' required by Grutter."

First, and understanding the difference between consideration and implementation, as the Ninth Circuit properly found, Grutter permitted race-based admissions but did not require them.

Second, the Fifth Circuit took the term "serious, good faith consideration" substantially out of context: In the Grutter decision itself, Justice O'Connor, writing for the majority, said that "narrow tailoring" -- a characteristic of an admissions plan's racial aspects required for them to be constitutional -- "does, however, require serious, good faith consideration of workable race-neutral alternatives that will achieve the diversity the university seeks."

In other words, the Fifth Circuit implied that the Supreme Court mandated serious consideration of race-based admissions when they actually mandated serious consideration of race-neutral alternatives. While the Supreme Court's decision in the case will not hinge on the Appeals Court's getting the context of three words wrong, an undecided Justice may -- even if subconsciously -- be forgiven for wondering whether the Circuit ruling must be quite weak if they had to resort to rhetorical shenanigans to support it.

While President Obama has generally avoided questions on affirmative action, the Justice Department submitted an Amicus brief to the Fifth Circuit in support of the University's admissions policy and its racial aspects.

By "granting cert" the Court is giving a strong hint that it may not only find the University's current use of affirmative action goes beyond what Grutter allows, but may also overturn Grutter ​completely now that Sandra Day O'Connor has left the Court. Oral argument has not yet been scheduled, meaning the case may not be decided until June, 2013.

Of the four votes against the University and against affirmative action in Grutter, three remain on the Court: Justices Kennedy, Scalia, and Thomas. Justices Breyer and Ginsburg sided with the University in 2003. There is little doubt that Justice Alito will share the view of his conservative colleagues, nor that Justice Sonia "Wise Latina" Sotomayor will rule in favor of affirmative action. Justice Kagan is recused from the case because of her involvement in it when she was President Obama's Solicitor General; she was also a prior finalist to become Dean of the University of Texas Law School. This leaves a 4-3 margin to overturn the lower courts' rulings and end affirmative action in higher education admissions forever.

On the surface, the best hope for supporters of affirmative action is that Chief Justice Roberts may decide that precedent trumps principle. This is not out of the realm of possibility despite Roberts' majority opinion in the 2006-2007 case of Parents Involved in Community Schools v. Seattle School District No. 1, in which the Court invalidated a Seattle school district's policy of assigning students to schools based on race (in the process overturning decisions of both the Ninth and Sixth Circuit Courts of Appeals). In that case, Roberts acknowledged Grutter but said it did not apply in the Seattle situation (because Grutter was specific to higher education), that Seattle had no widespread past discrimination or segregation to remedy, and that (quoting the Gratz decision) "racial classifications are simply too pernicious to permit any but the most exact connection between justification and classification."

Most suggestive of the Chief Justice's likely position in Fisher, however, is his reassertion of a Supreme Court principle apparently forgotten by today's liberals, whether Supreme Court Justices, elected politicians, or media pundits: "Accepting racial balancing as a compelling state interest would justify the imposition of racial proportionality throughout American society, contrary to our repeated recognition that '[a]t the heart of the Constitution's guarantee of equal protection lies the simple command that the Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class.'"

In his partial concurrence in Seattle School District No. 1, Justice Kennedy argued that the school districts "failed to provide the necessary support for the proposition that there is no other way than individual racial classifications to avoid racial isolation in their school districts."

But as if predicting Supreme Court Justices weren't difficult enough, Kennedy then described Roberts' opinion as "imply[ing] an all-too-unyielding insistence that race cannot be a factor in instances when, in my view, it may be taken into account."

Therefore, the Chief Justice may be a more likely vote for Fisher and against the University of Texas than his Seattle opinion might imply -- and Justice Kennedy a less sure vote to overturn Grutter even though he voted against it the first time, if he believes the result will be the complete demise of race-based school admissions policy nationwide. Indeed, Kennedy's dissent in Grutter was based on his view that the Court did not apply "strict scrutiny" to Texas's specific policy rather than a view that affirmative action is inherently unconstitutional.

The precedent for upholding affirmative action in the upcoming Fisher case is further weakened by the Gratz​ ruling, which showed the steady erosion of the Court's willingness to accept judging people based on the color of their skin rather than the content of their character -- or their grades and test scores.

Additionally, as is typical of "progressive" programs, we are asked to judge them based on stated intent rather than on actual outcome. In the case of affirmative action, data supports the conclusion that graduation rates among blacks and Hispanics rise when admission preferences are banned -- though the total number of minorities who graduate declines due to lower total admission.

I submit that a higher graduation rate is more important than the total numbers who graduate if a minority with a college or graduate school degree is to be taken as seriously as his white counterpart when interviewing for employment. It does no favor for minorities if our higher education system causes employers to question whether an applicant's degree was earned through merit or through preferences unrelated to actual educational performance.

Where do we go if the Supreme Court effectively bans the consideration of race in college and graduate school admissions?

We pivot, as the left always does, from race to class. President Obama has long hinted at his preferred form of affirmative action, giving lower-income school applicants preference over students from upper-middle class and wealthy families.

When asked about the issue in a 2007 interview on ABC's This Week, Obama said "I think that we should take into account white kids who have been disadvantaged and have grown up in poverty and shown themselves to have what it takes to succeed." And when asked specifically whether his daughters should receive a boost from affirmative action policies, he responded that they "should probably be treated by any admissions officer as folks who are pretty advantaged."

Polls on race-based affirmative action programs have wide-ranging results based on the form of the question. When asked about "programs which help minorities get ahead," a 2009 CBS News/NY Times poll shows 50 percent of Americans favoring such programs and 41 percent opposed, the lowest favorability number recorded since the question was first asked in 1997.

But a 2009 survey (with more than triple the CBS/NY Times sample size) by Quinnipiac University showed a roughly two-to-one disapproval of affirmative action in hiring or college admission, whether the benefit goes to blacks, Hispanics, or women. (A majority supported affirmative action for the disabled.) As with all such polls, blacks strongly support affirmative action programs, whites oppose them, and Hispanics are mixed. Similarly, liberals support race-based affirmative action while moderates and conservatives oppose it.

When asked whether preferences for blacks justify fewer opportunities for whites, results were 59 percent "no" versus 29 percent "yes." Blacks said "yes" by an eight point margin (48 percent to 40 percent), though Democrats overall said "no" by a one point (45 percent to 44 percent) margin.

However, polls show "economic affirmative action" is far more popular, with the above CBS/NY Times poll asking whether people "favor programs help people from low-income backgrounds get ahead" receiving a favorable response from 80 percent of those questioned, with only 15 percent opposed. Several polls in 2003 suggested a roughly 60 percent national approval for income-based affirmative action.

It is easy to understand the greater appeal of helping the poor (or at least the not-rich) than of helping people based on skin color. In a report for the progressive Century Foundation, Richard Kahlenberg says, "At top tier colleges, students in the highest economic quartile take up 74 percent of the available slots, compared with 3 percent from the bottom economic quartile." This will strike the "fairness" chord in America much more effectively than a race-based argument.

In addition to wider public appeal, it is likely that an income- or wealth-based test as part of a college admissions policy would be upheld in any legal challenge because it would not fall under the Supreme Court's "strict scrutiny" requirement that applies to issues of race.

While economic affirmative action is less objectionable than race-based policies, it still suffers from two major flaws: First, it plays into the left's never-ending stoking of class warfare in America, positioning the rich as deserving to be disadvantaged wherever possible to "make up for" their inherent "unfair" advantages.

Second, it addresses the symptom rather than the disease: major colleges are desperate to enhance "diversity" in their student populations. To the extent that they can't without using race as a factor in admissions, it is a massive indictment of our true national ailment -- a public education system that utterly fails those low-income and minority Americans who most need a solid basic educational foundation to break the chains of poverty.

In 2012, it is past time for the Supreme Court to insist that universities stop judging people based on the color of their skin rather than the content of their character -- or their grades and test scores. When even the Ninth Circuit rules against affirmative action, one can hope that the American people really are drifting, even if with glacial slowness, toward viewing each other as individuals rather than as members of perpetual victim groups.

Like this Article

Print this Article

Print Article
About the Author
Ross Kaminsky is a self-employed trader and investor and is a senior fellow of the Heartland Institute. He is the host of The Ross Kaminsky Show on Denver's NewsRadio 850 KOA on Saturday mornings from 6 AM to 9 AM. You can reach Ross by e-mail at rossputin(at)rossputin(dot)com.