Wednesday, June 26, 2013

Affirmative Action Survives to See Another Day—For Now…

The following is a piece from James A. Beckman, author of the forthcoming 2014 title Affirmative Action: Contemporary Perspectives and Associate Professor of Legal Studies at the University of Central Florida

The dust has settled from yet another constitutional battle involving the war over affirmative action in America. The United States Supreme Court rendered the latest of a long line of decisions spanning over three decades on Monday, June 24, 2013, again placing restrictions (but not outright eliminating) the practice of affirmative action in the case of Fisher v. University of Texas at Austin. Proponents of affirmative action can take solace in the fact that the concept of affirmative action still survives—at least until the next major challenge. In ruling in Fisher, the Court declined to overturn any of its landmark cases of affirmative action—like Grutter v. Bollinger in 2003 and Regents of the University of California v. Bakke in 1978—and continued to allow universities to use race in admissions decisions so long as no other “workable race-neutral alternatives would produce the educational benefits of diversity.”

The Supreme Court in Fisher, by a 7-1 ruling, avoided the most extreme path of entirely dismantling affirmative action, and instead opting for a “middle of the road” approach, which reversed the federal Fifth Circuit Court of Appeals (which had upheld the University of Texas affirmative action admission’s plan as constitutional) as not upholding the rigorous level of judicial review needed in race classification cases as the Supreme Court has previously mandated and required to be employed by courts reviewing these cases (as the Court said in Bakke in 1978 and Grutter in 2003), and remanding the case back to the lower courts for further review. 
Thus, while the Court reversed the lower federal court's decision as not meeting its exacting standards under “strict scrutiny,” the majority did however again decline to strike down the general practice of affirmative action as per se unconstitutional and refused to characterize the practice as no longer being needed in society. Indeed, going into the Fisher case, proponents of affirmative action were acutely aware that it was possible that a majority on the Court could have dismantled affirmative action outright, pronounced the complete prohibition on the use of race or ethnicity in admissions decisions (or related governmental actions), and declared America’s experiment with remedial race-conscious preferences to be at an end and no longer necessary in modern society.

There was nothing overly revolutionary or radical in today’s ruling, and the Court seems to reaffirm that diversity is a compelling governmental interest and that Bakke and Grutter decisions are still good law (despite Justice Scalia and Justices Thomas’ concurring opinions to the contrary). This alone should give some comfort to supporters of affirmative action—at least in the short term. Given that the Court has basically used the Fisher ruling to reaffirm its rules set out in Grutter—and specifically that “strict scrutiny” needs to be truly meaningful scrutiny, and not (as the Court says) “strict in theory and feeble in fact,” the standard for review in future cases will certainly need to be more exacting, and states will need to show that “no workable race-neutral alternatives would produce the educational benefits of diversity.” While this is a more exacting standard of review moving forward, the Court clearly did not decide that UT’s program in using race was unconstitutional. The decision also references and upholds the standards set forth in Bakke & Grutter—so Bakke and Grutter are still good law, and diversity in higher education still can be considered a permissible compelling governmental interest. The Court signaled that race based affirmative action plans can still be considered constitutional if implemented properly (and if no workable race neutral alternatives are available). 

Thus, the ruling in Fisher was a narrow one, saving the broader battle over affirmative action (and a possible final end point) for another day. However, while holding that affirmative action survives, the Supreme Court made clear that reviewing courts have the obligation to make their own independent judgments about whether the university’s critical mass determination is a valid one. That is, strict scrutiny requires real and meaningful searching inquiries on the part of the court; not deference to the institution at issue. Further, as diversity increases on campus, it should be harder for institutions to consider race and use affirmative action at all. 

Thus, through the settling haze, the practice of affirmative action still stands, alive, but battered. The practice has withstood the Court’s restrictions and caveats in such cases as the Regents of the University of California v. Bakke in 1978, Adarand v. Pena in 1995, Gratz v. Bollinger in 2003, Grutter v. Bollinger in 2003, and now Fisher v. University of Texas at Austin in 2013.  It is battered, bruised and wobbling—like a punch happy pugilist who is recoiling from one too many uppercuts to the jaw; but yet, still it stands. Weaker, more tempered, but still in the fight.  While judicial concepts like “strict scrutiny” have been further defined and the level of review has been increased, proponents of affirmative action can take solace in the fact that the concept of affirmative action still survives—at least until the next major challenge.

One final note: The next major challenge may not be too far off in the distance. The Supreme Court has already granted review of the next affirmative action case in Schuette v. Coalition to Defend Affirmative Action by Any Means Necessary. The case will be argued at the Supreme Court in the Fall 2013 term. This case deals with the propriety and fate of state law bans on the practice of affirmative action. This case deals with the constitutionality of Michigan Proposal 2, which amended the Michigan state constitution to prohibit (as a matter of state law) public institutions within the state from utilizing racial-preference in admissions, employment, and contracting. In the petition to the Supreme Court requesting review, Michigan Attorney General Bill Schuette stressed that he was not asking the Court to constitutionally dismantle affirmative action itself (as was a possibility leading up to the Fisher ruling), but rather whether state governments can decide to do so on their own. Thus, according to Michigan Attorney General Schuette, “this case presents the different issue whether a state has the right to accept this Court’s invitation in Grutter to bring an end to all race-based preferences.” This “invitation” is clearly a reference to Justice O’Connor’s language in Grutter that affirmative action should not be a permanent program and should have a logical end point, and that end point should be within the next quarter century from the Grutter decision (i.e., by 2028). The stage is already set for this next battle over affirmative action. Stay tuned in the Fall.  

. . .

James A. Beckman (J.D., Ohio State,  LL.M. Georgetown University) is Associate Professor of Legal Studies at the University of Central Florida, where he also serves as the inaugural chair of the Department of Legal Studies. He is the author of Comparative Legal Approaches to Homeland Security and Anti-terrorism (2007) and Affirmative Action Now: A Guide for Students, Families, and Counselors (2006); he is also the General Editor of Affirmative Action: An Encyclopedia (2004). Before his entrance into academia in 2000, he served as an attorney-advisor for the Bureau of Alcohol, Tobacco & Firearms (ATF) at its headquarters in Washington, DC.  Among other awards, he was the recipient of the United States Department of Defense Meritorious Service Medal for his legal work as an active duty judge advocate from 1994–1998, and the Department of Justice Meritorious Service Award (1999) for legal work on behalf of the Department of Justice and ATF.


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