25 de junho de 2013

A Reprieve for Affirmative Action

June 24, 2013, The New York Times

By a vote of 7 to 1 on Monday, the Supreme Court issued a narrow ruling about a public university’s use of race as a factor in admissions. The good news is that the court affirmed major precedents going back 35 years. It asserted that a more diverse student body — and an admission policy that helps produce one — serves a compelling interest of government by achieving educational and social benefits. Diversity, in turn, helps realize what the court has called “the dream of one nation, indivisible.”
At the same time, the court sent the case at hand — Fisher v. University of Texas at Austin — back for review by the United States Court of Appeals for the Fifth Circuit, which had upheld the university’s use of race in its admissions policy. The court did not say that race could not be used to achieve diversity. It did say, however, that the appeals court must closely reconsider the university’s admissions process to determine whether a race-neutral approach could achieve the level of diversity it seeks.
Writing for the majority, Justice Anthony Kennedy said, “Strict scrutiny must not be strict in theory but feeble in fact.” By this, he meant the court must do a better job of determining that the university needs to rely on race in admissions to achieve greater diversity, including why it wants to admit more minorities in the first place.
In its brief, the university explained that it was not able to admit “an adequate representation of minority students to assure educational benefits deriving from diversity” despite many years “of good-faith efforts to achieve racial diversity through facially race-neutral means.” That included, most prominently, the state’s Top Ten Percent program, which uses geography as a proxy for race by assuring every Texas student who graduates in the top tenth of a high school class admission to a state university.
That program has resulted in increased minority admissions, but not enough to satisfy the University of Texas at Austin. It would be in the university’s interest for the appeals court to send the case back to the federal trial court to gather more evidence showing that race-neutral alternatives left the university with too few minorities to assure those benefits.
This is undeniably a tricky issue. Since Justice Lewis Powell wrote the controlling opinion for the Supreme Court in 1978 saying race-conscious admissions were constitutional but racial quotas were not, it has been necessary for any university justifying race as a factor in admissions not to do so on grounds that it would help the institution achieve a specific measure of diversity.
But as Justice Ruth Bader Ginsburg’s dissent in this case said, the University of Texas considers race only as a “factor of a factor of a factor of a factor.” Based on the careful balance the court has long insisted on, the justice made clear, race is not a thumb on the scale in admissions. It is a soft touch, one of many factors considered in a holistic review.
Justice Kennedy’s majority opinion also said that the strict scrutiny called for in this case must not be “strict in theory, but fatal in fact.” The University of Texas at Austin, and any college or university whose admissions policy is challenged in court, must be permitted to prove what the Supreme Court has just required — that, without the policy, it would not have enough diversity to assure the profound benefits that flow from it.

A Long, Slow Drift From Racial Justice

THE Supreme Court has again upheld the principles behind race-conscious affirmative action, no small feat for the cause of diversity in higher education. But in framing the issue very technically, it has, wittingly or not, continued its drift away from the ideals it advanced in the civil rights era, beginning with Brown v. Board of Education.
In its decision on Monday, in Fisher v. University of Texas, the court ordered a federal appellate court to take a fresh look — under the demanding standard of “strict scrutiny” — at whether Texas’ public universities were properly using race as one factor (among many) in admitting a diverse student body. The appellate court will have to examine “how the process works in practice,” Justice Anthony M. Kennedy wrote in the decision for the majority.
As a law professor, and as the named defendant in the last two major affirmative action cases decided by the Supreme Court (in my capacity as president of the University of Michigan at the time), in 2003, I breathed a slight sigh of relief on Monday. But I worry that the new ruling will empower lower courts and, no doubt, litigants to challenge benign considerations of race — those that seek to advance legitimate goals of diversity in education — more easily than ever.
The court is as much an educator, a moral instructor, as an interpreter of the fundamental law of the land. In construing the constitutional issues so narrowly, the decision can be read as taking a reluctant, even begrudging, stance toward affirmative action.
Part of this hesitance is, no doubt, a product of judicial compromise. But for ordinary Americans, the linkage between race-conscious college admissions and the larger project of social justice is at risk of being lost amid the minutiae.
In Regents of the University of California v. Bakke, the landmark 1978 case on affirmative action, Justice Lewis F. Powell Jr. ruled that quotas were unconstitutional in any context but permitted colleges to consider race as one factor in admissions — provided that they embraced the policies for educational benefits and not as a remedy for past societal discrimination. While his distinction was understandable, it contributed to an unfortunate uncoupling of affirmative action from its social context. There is a moral and constitutional difference between policies that take into account the realities of America’s troubled racial history, and pernicious forms of discrimination, like the Jim Crow laws.
The enduring effects of nearly four centuries of racial subjugation and subordination — much of it state-sanctioned — have not vanished even though the United States has a black president. We may hope that Justice Sandra Day O’Connor’s prediction in 2003 that affirmative action would not be necessary in 25 years is true, but the time frame may sadly be too brief, given our fraught history.
In many school districts, racial segregation is as bad as it was before Brown. About 40 percent of black and Hispanic children attend K-12 schools where 10 percent or fewer of their classmates are white. Residential racial segregation remains deeply entrenched. Proposition 209, a voter-sanctioned ban on affirmative action at California’s public universities, led to a sharp decrease in representation of black students at the Berkeley and Los Angeles campuses. While 43 percent of whites have a college degree, 27 and 19 percent of blacks and Hispanics, respectively, hold one.
Despite those disparities, Fisher can be read as setting a high bar for consideration of race in admissions: universities must demonstrate that race or ethnicity has not been the defining feature in an admissions decision; that the use of race is necessary to achieve the educational benefits of diversity; and that there is no “available, workable” race-neutral alternative to achieve such benefits. It will not be impossible for universities, public and private, to meet these requirements, but it may well prove difficult, time-consuming and costly. Lower courts will have to see whether the University of Texas meets the test. The flagship Austin campus admits three-quarters of its students under a program that guarantees admission to the top students in every high school in the state. The rest are admitted under “holistic” criteria — of which race is but one.
The greatest moments of jurisprudence have never been merely dry legal analysis, but have been linked to broader principles — and historical and social realities — from which they derive. One cost of Monday’s ruling may be the failure to renew a conversation about racial justice as the civil-rights era recedes further and further into the past. Strikingly, it was Justice Clarence Thomas who most engaged the vital historical context, writing that “arguments advanced by the University in defense of discrimination are the same as those advanced by the segregationists.” I disagree profoundly with his logic, though I admire his candor.
While a strong majority has affirmed the status quo on affirmative action, for now, advocates of racial justice have much work ahead of us before the next time this issue reaches the high court.

Lee C. Bollinger is the president of Columbia University and a former president, and dean of the law school, at the University of Michigan, Ann Arbor.
June 24, 2013

Lacking Definitive Ruling on Affirmative Action, Both Sides Claim Victory

WASHINGTON — The Supreme Court’s decision to send a thorny affirmative action case back to the lower courts for additional review left both sides claiming victory on Monday.
Civil rights groups that favor race-conscious admissions cheered the ruling, arguing that the court had upheld its 2003 decision in Grutter v. Bollinger. That decision supported the principle that states have a compelling interest in achieving student diversity but required that any plan to include race as a factor in admissions should be subjected to strong scrutiny.
“We’re gratified that the court has essentially upheld that framework,” said Sherrilyn Ifill, president of the NAACP Legal Defense and Educational Fund.
Edward Blum, the man who has been the driving force behind the challenge to the University of Texas at Austin ruled on by the court, scoffed at the claims of a victory from groups that support affirmative action. “If they are excited about this ruling,” he said, “I think it’s gravely misplaced.”
The decision, Mr. Blum said, “begins the restoration of the original colorblind principles to our nation’s civil rights laws,” and will both hasten the end of racial preferences in schools across the nation and unleash a flood of lawsuits. Under the justices’ requirement that racial distinctions in admissions be subjected to a tough constitutional test, he said, “it is very unlikely that most institutions will be able to overcome these hurdles.”
Experts without a strong stake in the case said that neither side should feel fully triumphant, and that the issue was far from resolved.
“For supporters of affirmative action, I’d put it in the category of disaster averted rather than victory achieved,” said David A. Strauss, a law professor at the University of Chicago. He said a trial, potentially followed by another round of appeals, could mean the case will remain in the spotlight for years.
“It looks like the case has to turn on the specific facts,” he said. “The court really wants the lower courts to get deep into it, and that suggests a trial.”
Major state universities reacted cautiously, with most either declining to comment or saying they were still trying to make sense of the ruling. Administrators said that the decision would have no effect for now, but that the case — and the issue — was not dead.
“Prior to this particular ruling, every university in the country was already thinking about all of the alternatives, depending on the outcome of the case, and about how to prove whether a policy is working,” said Joanne E. Berg, vice provost for enrollment at the University of Wisconsin-Madison. “I don’t think that should change, and I don’t think it will.”
How much has actually changed with Monday’s decision is questionable, said Erwin Chemerinsky, founding dean of the law school at the University of California, Irvine. While the tone of the opinion in the Fisher v. University of Texas case written by Justice Anthony M. Kennedy is tougher than that of Justice Sandra Day O’Connor’s opinion in the 2003 Grutter case, “in terms of the law it always has been established that strict scrutiny requires proof that no less discriminatory alternative can suffice,” he said.
So while Mr. Chemerinsky expects to see more litigation against state universities, “I don’t think it will be a ‘floodgates’ because this case changed so little, and the real issue will be what happens on remand and when it gets back to the Supreme Court.”
The Texas plan, however, may not survive, said Vinay Harpalani, a visiting assistant professor of law at the Chicago-Kent College of Law at the Illinois Institute of Technology. Because previous votes at the Court of Appeals were close, he noted, the tougher review could lead the district court or the Fifth Circuit to strike down the Texas policy.
Eight states have already banned consideration of race in admissions to their public colleges: Arizona, California, Florida, Michigan, New Hampshire, Nebraska, Oklahoma and Washington, though Michigan’s law has been suspended by a court ruling and will be weighed by the Supreme Court later this year.
Meanwhile, Abigail Fisher, the young woman who sued the University of Texas, said, “I’m just very honored and grateful to have participated in this.” With a diffident smile, she spoke at the American Enterprise Institute in Washington, alongside Mr. Blum and her parents. “I am very confident U.T. won’t be able to use race as a factor in admissions in the future,” she said.
The lesson Ms. Fisher learned from the experience of taking a case all the way to the Supreme Court? “Stick by your ideals, even if it means some personal sacrifice,” she said.
William Powers Jr., the president of the University of Texas at Austin, said that the university would continue to defend its policy, because a diverse student body “prepares young people for life in an increasingly global society.” The ruling, he said, “has no impact on admissions decisions we have already made or any immediate impact on our holistic admissions policy.”
John Schwartz reported from Washington, and Richard Pérez-Peña from New York.

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