Is Affirmative Action About to Die?

Race based affirmative action programs for admission to public universities may be at an end.  One of the last remaining Supreme Court decisions yet to be decided from last term is Schuette v. Coalition to Defend Affirmative Action and the decision will have huge implications for raced-based decisions in admission policies.

The case concerns Proposal 2, a statewide ballot initiative that after approval amended the State Constitution by banning affirmative action programs.Seven other states likewise ban affirmative actionand their laws could be impacted by the decision as well.

The End of Affirmative Action In Michigan

Michigan’s law was overturned by the 6th Circuit in 2012.  The Circuit Court found that the law denied minority groups equal protection under the law.  The court based its decision on finding that the Michigan law:

1) had a racial focus that targeted a policy that insures primarily to the benefit of the minority; and

2) reallocated political power in a way that placed special burdens on a minority group’s ability to achieve its goals through the political power structure.

A 60 Year Precedent

The decision upholding the law is in keeping with federal court’s history in the last 60 plus years of allowing for race based decision making when correcting past instances of racial discrimination and in helping racial minorities achieve political, economic, and educational advancements.

Current affirmative action law allows for racially based decisions but not quotas.  The last major Supreme Court decision in the area was Grutter v. Bollinger – a case involving the admissions policy at the University of Michigan Law School.  In that case the Supreme Court ruled that student body diversity is a compelling state interest that can justify the use of race in admission decisions.  Noting that admission decisions based simply on admitting a certain percentage of minority students is unconstitutional, the Court found that the school’s “narrowly tailored” plan was proper when using race as one factor among many others in making admissions decisions.

More recently the Court, last June, issued a ruling setting a very high bar for using race in admission policies.  In Fisher v. University of Texas it is made clear that any policy using race as an admissions criteria is subject to strict scrutiny and simply finding that a university is operating in good faith does not suffice in determining the constitutionality of the policy, nor is deference to a university’s expertise proper.

The decision in Fisher means that a plan using race as a factor in admissions decisions will have a high burden of proof as to its constitutionality.  For that reason many schools may elect to seek out alternative ways to achieve diversity.

New Ways of Achieving Diversity

In Texas, the University of Texas has an admissions policy that allows automatic admission to anyone finishing in the top 10% of their high school class.  This has gone a far way toward achieving more diverse classes without any reliance on race considerations.

Other policies schools are adopting include eliminating preferences for children of alumni, considering family income in admissions decisions, and increasing financial aid packages.  Such moves appear to be the future in attaining diversity in America’s public universities

If the Court upholds Michigan’s ban then you can expect other states to pass similar laws.  This will accelerate the need for schools to use different means other than race-based decisions to attain diverse student bodies.

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