Yesterday, the Court heard oral arguments in Schuette v. Coalition to Defend Affirmative Action. The case involves a decision by the 6th Circuit Court of Appeals to strike down a Michigan constitutional amendment banning the use of racial preferences in higher education. The oral argument did nothing to dispel the nearly universal assumption of court-watchers that the decision will be reversed, although the argument against the amendment has a stronger basis in precedent than it's sometimes been given credit for.
One thing the three most anticipated cases of the recently completed Supreme Court term have in common is the questions they didn't answer. Hollingsworth v. Perry, by ducking the question on jurisdictional grounds, left the constitutional status of state bans on same-sex marriage an open question. Shelby County v. Holder theoretically permitted Congress to update the preclearance formula to put the teeth back into the Voting Rights Act. However, the Court gave lower courts future Supreme Courts no useful guideline for how Congress could proceed. (Admittedly, the answer for how Congress can constitutionally proceed, at least for the Roberts Court, is almost certainly "it can't.") But the term's clearest passing of the buck was the decision in the potentially major affirmative-action case, UT Austin v. Fisher. While many people (including me) expected the Court to use the case as a vehicle to declare virtually all affirmative action in public higher education unconstitutional, after eight long months the Court issued a brief opinion that merely sent the issue back to the lower courts without a definitive ruling. What then, does Fisher suggest about the future of affirmative action?
The reason affirmative action matters is not because of the possible educational benefits of diversity but because it raises a more fundamental question: do raise-conscious admissions policies amount to unjustifiable discrimination against white people or are they an appropriate response to both past and present discrimination against black people? But even though racism against blacks and Latinos remains a real issue in American society (the idea that whites are also its victims is a joke the Supreme Court has never gotten), the fundamental inequalities in American life today—the rich getting richer while the poor get poorer—are not produced by discrimination and cannot be resolved by anti-discrimination. And affirmative action—whether class-based or race-based—is only a way of buttressing those inequalities. As is, indeed, the entire emphasis on education as the key to a more economically just society. In other words, the reason both affirmative action and education matter in the way they do is not because they solve the problem we actually have but because they conceal it. And the increasingly popular idea that we can fix affirmative action by making it work for poor people as well as or instead of for people of color is just another turn of the neoliberal screw. The problem is not unequal access to the elite; it’s the very idea of the elite.
Although many liberals have expressed initial relief that the Supreme Court decision in Fisher v. University of Texas did not kill affirmative action outright, when the dust settles it will become clear that the ruling made it substantially harder to justify race-based affirmative action programs. The Supreme Court adopted a new, higher standard, requiring that judges "must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity." Unlike the earlier ruling in Grutter v. Bollinger, the Court won't simply take the word of universities that race is a necessary consideration; universities will receive "no deference" on that issue, the Fisher court ruled. Procedurally, the justices simply sent the case back to the lower court, but make no mistake, the ability to use race as a qualification for admission has been scaled back by this decision.
As the Prospect's Jamelle Bouie notes, yesterday the Supreme Court finally released Fisher v. University of Texas, its long-awaited affirmative action ruling and ... mostly decided not to decide. There is surely a juicy story waiting to be uncovered about why the Court took eight months to issue a ruling that barely took up 40 pages and left the current state of the law essentially untouched.
For the Supreme Court, the key question in Fisher v. University of Texas was this: “Is diversity in college admissions a compelling interest for the government, and are race-conscious policies a legitimate way of pursuing that interest?”
Put another way, is racism over and do we still have to deal with it?
To my—and many other’s—surprise, the Court decided to sidestep this question. Rather than support UT’s claim that its race-conscious policies fall within the Court’s standards for affirmative action, or Fisher’s claim that race-consciousness has no place in the business of college admissions, the Supreme Court—in a 7–1 decision written by Justice Anthony Kennedy—sent the case back to the Fifth Circuit Court of Appeals on a technicality.
The last week or so has seen several polls on the popularity of affirmative action, as a preface (of sorts) to the Supreme Court’s anticipated ruling in Fisher v. University of Texas. But major differences between the polls make it difficult to judge where Americans stand on racial preferences
The academic and policy worlds have been roiled by last week’s announcement that a Heritage Foundation study on the cost of immigration reform was co-authored by Jason Richwine, who wrote a dissertation on the purported low I.Q. of immigrants. It beyond belief that, in the year 2013, there are still some that want to posit that there is a genetic basis for race. Even more surprisingly, these arguments come endorsed with a seal of approval by some of the nation’s top universities, like Harvard in this case. As an alumnus of the Kennedy School and a scholar of race and Hispanic identity, I feel obliged to provide a response.
This, from YouGov, tells you everything you need to know about contemporary race relations in a single, compact chart:
For 66 percent of white Americans to agree with this statement—“Irish, Italian, Jewish, and many other minorities overcame prejudice and worked their way up. Blacks should do the same without any special favors”—there needs to be either large scale amnesia or willful ignorance about what happened in the previous 150 years of this country’s history.
As my colleague Jamelle Bouie noted yesterday, the Supreme Court agreed to hear Fisher v. UT Austin, a challenge to the use of affirmative action for undergraduate admissions at the University of Texas. I wish I could make a case for more optimism, but I have to agree with the conventional wisdom that Grutter v.
(“It’s His Fault,” political cartoon, 2003, from Washington Post Writers Group.)
In almost every argument I’ve had about affirmative action in college admissions, someone eventually trots out the idea that the beneficaries of affirmative action are somehow “stealing” spots that rightfully belong to more “deserving” students. Ignoring, for a moment, the implicit assumption—that minority students are somehow less deserving—it’s simply a fact that college admissions don’t work that way. In open-admission pools where no one has a guaranteed spot, universites use a large number of factors to determine whom they accept and whom they deny. Sometimes, it turns on race and ethnicity, and sometimes it doesn’t.
A recent report from the Greenlining Institute -- which focuses on issues of racial and economic justice -- uses the "racial resentment" scale to measure the racial dimensions of opposition to health-care reform. For those unfamiliar with the concept, here's a quick description:
In a new working paper published by the National Bureau of Economic Research, Harvard economist Roland Fryer finds that discrimination isn't as nearly as important to explaining racial inequality as it once was. He writes: