Fisher v. Texas: Affirmative Action for Whites Only?
On September 19, I had the great privilege of speaking at Kansas State University as the Dorothy L. Thompson Lecturer on Civil Rights. KSU is one of the finest universities in the nation (with one of the most attractive college campuses I have seen). KSU students are simply top-notch. So, it was a great opportunity to have a serious conversation about civil rights in America today, with a more conservative audience than the norm in Chicago.
My topic was Fisher v. Texas, the upcoming Supreme Court Case re-addressing affirmative action programs designed to achieve a diverse learning environment. The Supreme Court settled this issue in 1978, in Board of Regents of the Univ. of California v. Bakke, and again in 2003, in Grutter v. Bollinger. In both cases, conservative appointees ruled that diversity in higher education is a compelling state interest justifying narrowly-tailored measures that consider race or ethnicity, in careful and balanced decisions. Justice Powell wrote the key opinion in Bakke and Justice O’Connor wrote the key opinion in Grutter.
The video of my lecture is available here, and includes shots of my entire PowerPoint presentation.
Here is a summary of my key points:
1) The drafters of the Equal Protection Clause of the Fourteenth Amendment, which the Supreme Court uses to limit affirmative action, intended to protect former slaves, not to protect those with the resources to attain equal protection on their own. According to the Supreme Court in 1880 the purpose of the clause was:
It is historically incorrect to read the clause to limit the power of the government to address continuing racial oppression in our country. For example, 40 percent of African American children live in poverty as do 35 percent of Hispanic children.
2) The meritorious contributions diverse students make to a diverse learning environment constitutes a compelling state interest as demonstrated by the continuing accumulation of empirical data of the educational benefits of diversity, as well as the manifest needs of our business sector and military for more diverse leaders. Because we still live in a highly racialized society, using race as one factor (in accordance with the Grutter mandate of an individualized and holistic analysis of diversity contributions) for unlocking those diverse contributions is a narrowly tailored means of achieving the compelling state interest in diverse leadership and diverse educational environments.
3) The most non-meritorious and morally suspect affirmative action benefits rich and powerful whites. As The Economist states:
This 60 percent set-aside does not contribute to enhanced learning environments but instead just populates our elite universities with scions of privilege–almost always white privilege.
If the Supreme Court overturns the affirmative action plan of the University of Texas (involving 3 percent of entering slots) while remaining willfully blind to the 60 percent of the slots that entrench white privilege at our elite universities, they will effectively re-write the Fourteenth Amendment to mean: “When it comes to affirmative action, whites only need apply.” That would pervert the whole purpose of the Fourteenth Amendment.
4) While one may speculate that race neutral measures may suffice to secure classroom diversity (such as living in poverty or a low income household), such measures are virtually never implemented. Indeed, the fact that so many universities use race or ethnicity as a “plus factor” suggests that it holds some degree of political plausibility that other alternatives do not. Conjuring-up other mechanisms of achieving diversity when such mechanisms enjoy little or no political viability hardly furthers the compelling state interest identified in Grutter.
5) Stare Decisis matters. The principle that courts should be guided by precedent in resolving disputes (and therefore restrained from indulging their personal preference, political goals and ideological preferences) forms the bedrock of our common law system. Judges are appointed, not elected, and in a system that values democratic rule-making they should say what the law is, not rewrite the law. Bakke and Grutter extend back 35 years. Only an activist Court pursuing politics rather than law would reverse such longstanding precedents. In the end, it is not appropriate for unelected judges to destabilize the rule of law and render it up for grabs based upon transient political preferences of the judiciary, unless the precedent is egregiously wrong or times have changed to such an extent that the precedent is simply too costly to maintain. Bakke and Grutter do not fit that bill.
Consequently, it seems extreme to just reverse 35 years of precedent and eliminate all affirmative action seeking to diversify American universities through the consideration of race or ethnicity. The students at Kansas State largely agreed with the idea that expanded educational opportunity for disadvantaged students made sense; yet, they evinced real discomfort with the use of race to address this concern or as a means of achieving educational diversity. At the end of the evening an informal poll found support for continued affirmative action based upon race (but in accordance with Grutter) by nearly a two to one ratio.
As part of the lecture event, I also did an interview with Richard Baker of KSU, for his outstanding Perspective series on Kansas Public Radio, which also summarizes the key points of the lecture:
Play Interview
2013-02-01 18:45:49
Source: http://corporatejusticeblog.blogspot.com/2012/09/fisher-v-texas-affirmative-action-for.html
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conservative appointees ruled that diversity in higher education is a compelling state interest.
SO in the interest of “what? fairness?” they let people who do NOT DESERVE a placement in college to bump someone who ISN’T of color AND IS QUALIFIED in favor of someone of color who did NOT put in the effort to get into college, FOR DIVERSITY!?!
REVERSE DISCRIMINATION IS STILL DISCRIMINATION! but because it’s discrimination against the evil white, it’s ok is it???
Screw diversity, if you didn’t put in the work and couldn’t qualify on the same playing field as everyone else, YOU DON’T DESERVE TO BUMP ANYONE just because you are a person of color!!!
How inferior does one have to be, to not comprehend what is being done in the name of diversity!
True equality. If you lower the scale to redistribute equality then quality and progress will suffer. Seems to me the Affirmative action movement has misinterpreted the meaning of the 14th.
Do you want Hank Aaron doing brain surgery on you or playing baseball? If some says, “Hank can’t play baseball because he is black”, quality and progress would have suffered.” The same would hold true to put Hank in a position he is not suited for on the basis of his color and tell someone they can’t do a thing because Hank is. True Equality.
I’m using a black man as an example but you can put any race black, latino, white asian or arab within like or similar examples…
Some might all this basic common sense….