Houston Chronicle

Affirmativ­e action win could’ve been stronger

- By Al Kauffman Kauffman is a law professor at St. Mary’s University School of Law in San Antonio. He has litigated and taught issues of affirmativ­e action, and other civil rights issues, for 40 years.

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.

 ?? Jacquelyn Martin / Associated Press ?? Pamela Yuen holds a sign in favor of affirmativ­e action outside of the Supreme Court on Dec. 9, 2015, as the court hears the Fisher case inside.
Jacquelyn Martin / Associated Press Pamela Yuen holds a sign in favor of affirmativ­e action outside of the Supreme Court on Dec. 9, 2015, as the court hears the Fisher case inside.

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