Affirmative action win could’ve been stronger
In the Fisher v. University of Texas at Austin case this week, the U.S. Supreme Court upheld the University of Texas’ very limited use of race as one minor factor in admitting qualified students to UT-Austin. The justices made the correct decision, and protected equal opportunity and diversity in Texas and the nation.
Without the decision, the stark and tragic underrepresentation of Latinos and African Americans at the most competitive universities, graduate and professional schools would grow even worse. Texas will soon be home to a majority “minority” population, and we must ensure that we are producing a set of leaders that reflects those populations.
But the decision should have been much stronger in support of affirmative action and allowed universities more, not less, flexibility on whom to admit to their institutions. These institutions have a very limited and valuable number of seats; and these seats are the ladders to the leadership of Texas in medicine, law, government, politics and business.
The Fisher case followed a long set of opinions that have retreated from real affirmative action and equal opportunity. In 1978, the Bakke v. University of California at Davis decision proscribed any use of quotas in designating seats at medical school for underrepresented populations. In the Bakke decision, the Supreme Court did support the use of race as one factor in making decisions based on the necessity of diversity in higher education. The court did not require universities to have tried, unsuccessfully, all other ways to promote diversity. It simply required that universities use race as only one factor.
In the 1980s and 1990s, the Supreme Court used a less demanding standard when reviewing policies designed to help groups historically underrepresented than when reviewing policies that hurt underrepresented groups. In other words, the Supreme Court realized that policies to benefit minority groups are more likely to be benign than policies meant to harm minority groups. In the 1990s, the Supreme Court slowly retreated from this reasonable approach.
Since the mid-1990s, the Supreme Court has reviewed policies designed to increase the minority representation at a university with the same level of review that they have applied to a policy that was meant to increase the white representation at the university. This new standard makes for great sound bites: “We are all equal” and “Discrimination is discrimination.” But this type of review ignores the history of the United States, and Texas in particular.
We have a dearth of minority representation in the professions, corporate boards and officers and government. We do not have a dearth of white representation in these careers — careers with such profound effects on our society.
The Supreme Court also held in the 1980s and 1990s that even the limited use of race could not be justified based on the broad societal discrimination we all know has existed for the history of our country.
This made affirmative action almost impossible.
Finally, in 2003, the Supreme Court upheld the very limited use of race in admissions to the University of Michigan Law School, but reversed the use of race by the University of Michigan undergraduate school. These decisions did uphold affirmative action, but placed almost impossible burdens on university officials and invited further litigation.
The Fisher decision is positive only when viewed through the perspective of the decades of mistakes by the court in limiting the best tools possible to ensure broad representation of racial ethnic groups in our universities. And denial of access to our most prestigious universities denies access to the top levels of business, the professions, government and the military.
Those of us interested in a fair society must continue to struggle to strengthen affirmative action plans to make sure that students of all racial ethnic groups have equal opportunity to be admitted to the finest universities and graduate and professional schools. We must avoid overreliance on tools, like standardized tests and access to the best high school programs, that continue to weed out qualified minority applicants. We must not be ignorant of the gradual dilution of this country’s dedication to equal rights so well exemplified by the Civil Rights Acts of the 1960s and 1970s. And we must hold our leaders at all levels accountable for their failures to fight for equal opportunity.