Mike Kueber's Blog

January 20, 2011

Legal development in affirmative action at UT

On January 18, 2011, a three-judge panel of the federal Fifth Circuit held in Fisher v. Texas that UT’s race-conscious admissions program was consistent with the race-conscious program approved by the U.S. Supreme Court in 2003 in Grutter v. Bollinger.   

The Fisher decision from Fifth Circuit panel focused on a variety of arguments regarding the “critical mass” necessary to achieve diversity.  The panel relied heavily on the Justice O’Connor’s description in the Grutter decision of educational benefits derived from diversity:

  1. Increased perspectives.  Justice O’Connor observed that including diverse perspectives improves the quality of the educational process because “classroom discussion is livelier, more spirited, and simply more enlightening and interesting when the students have the greatest possible variety of backgrounds.
  2. Professionalism.  The majority pointed to “numerous studies” showing that “student body diversity . . . better prepares [students] as professionals.”  The Court has “repeatedly acknowledged the overriding importance of preparing students for work and citizenship.”
  3. Civic Engagement. The Court recognized that “[e]ffective participation by members of all racial and ethnic groups in the civic life of our Nation is essential if the dream of one Nation, indivisible, is to be realized.”

One of the arguments made by the plaintiffs, and rejected by the panel, was that UT’s Top Ten Percent Law had achieved a critical mass of Hispanics and African-Americans that rendered race-conscious admissions unnecessary.  Interestingly, the Top Ten Percent Law, which was admittedly enacted to increase minority enrollment, passes constitutional muster; whereas, race-conscious admissions would not be constitutionally permissible if its objective was to increase minority enrollment.  Rather, such an admissions program is permissible only if its objective is to achieve a state’s compelling interest in diversity.

In reviewing the Grutter decision, the Fifth Circuit panel quoted from Justice O’Connor – “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”  And the panel concluded the decision by warning:

  • “In this dynamic environment, our conclusions should not be take to mean that UT is immune from its obligation to recalibrate its dual system of admissions as needed, and we cannot bless the university’s race-conscious admissions program in perpetuity.”

Next step – the plaintiffs will probably appeal the panel decision to the entire Fifth Circuit  or go directly to the U.S. Supreme Court. 

Personally, the legal arguments in favor of diversity seem disingenuous.  I strongly suspect that diversity is a significant educational objective only because quotas and racial balancing cannot be.

July 27, 2010

Death knell for affirmative action?

The Republican Party of Texas has taken a lot of heat for some of the extreme positions it has taken in its 2010 platform, especially its position that homosexuality is deviant behavior that must not be recognized as an acceptable alternative lifestyle.  But their platform position on Affirmative Action is dead-on. 

  • Affirmative Action – Inasmuch as the Civil Rights Movement argued against using race as a factor in American life, affirmative action reintroduces race as a powerful force in American life. The Republican Party of Texas believes in equal opportunity for all American citizens without regard to race or gender. To that end, we oppose affirmative action because
    1. We believe it is simply racism disguised as a social value.
    2. We believe that policies that lower standards on the basis of race or gender create a disincentive to excellence and thereby encourage mediocrity.
    3. We believe that rights belong to people – not groups; therefore, we reject the notion of group-rights and policies that grant preferences based on race or gender. Policies of this type apply a blanket remedy before specific acts of discrimination are proven; thus, such policies compound one injustice with another.
    4. Affirmative action falsely casts those who advocate merit as racist.
    5. Affirmative action casts doubt on minority achievement making such achievement as seemingly unearned. We believe that true minority advancement will come from a demand for personal responsibility, accountability and competitive excellence.

Of course, the Republican Party position has been opposed by the liberal left because the left doesn’t think the playing field in America is level and they think a bit of government interference will make for more equal opportunity.

This debate has been going on for decades, ever since Kennedy and Johnson issued executive orders in the 60s requiring some forms of so-called affirmative action.  Conservative opponents called it reverse discrimination and have consistently challenged it on Equal Protection grounds.  In 1978, there was an important Supreme Court decision – Bd. of Regents v. Bakke – that approved affirmative action, but not quotas, in medical-school admissions.  Twenty-five years later, the Court looked at this matter again in Grutter v. Bollinger.  Although the Court in Grutter re-approved racial preferences, it felt such strong reservations about the concept that it stated the preferences must be limited in time and should not be around 25 years later.

Perhaps we won’t have to wait 25 years. 

This past Friday, there was an important op-ed piece in the Wall Street Journal written by Senator James Webb, D-VA, titled “Diversity and the Myth of White Privilege,” and subtitled “America still owes a debt to its black citizens, but government programs to help all ‘people of color’ are unfair. They should end.”  http://online.wsj.com/article/SB10001424052748703724104575379630952309408.html?mod=WSJ_article_related.  This is an important piece because Webb is a well-respected liberal Democrat and powerful African-American Congressman James Clyburn has said he agrees with Webb.    

Webb’s piece followed a similar NYTimes article that was published last month regarding diversity or affirmative action in France.  http://www.nytimes.com/2010/07/01/world/europe/01ecoles.html?pagewanted=1.  The article reported that the French are trying to create more diversity in their best schools, but, “There is a serious question about how to measure diversity in a country where every citizen is presumed equal and there are no official statistics based on race, religion or ethnicity….  A goal cannot be called a ‘quota,’ which has an odor of the United States and affirmative action….  But the effort is being met with concerns from the grandes écoles, who fear it could dilute standards, and is stirring anger among the French at large, who fear it runs counter to a French ideal of a meritocracy blind to race, religion and ethnicity.”

Thus, we appear to have liberal Democrats, the French government, and the Republican Party of Texas speaking with the same voice regarding affirmative action.  Amazing.