Archive for Judiciary
Ann Killenbeck, a professor at the University of Arkansas, offers a fresh perspective on Grutter v. Bollinger, in which the U.S. Supreme Court ruled the University of Michigan law school’s use of race in admissions was narrowly tailored to further a compelling interest in “obtaining the educational benefits that flow from” a racially diverse student body.
Killenbeck’s article, published in an academic journal, focuses on a rarely discussed aspect of Grutter, which she calls Bakke with teeth. From the press release:
“In Grutter, the court acknowledges that each institution has the right to adopt a mission and policies that embrace diversity as a central element of its educational objectives, Killenbeck said. But the proper use of admission criteria with this objective in mind will succeed only if an institution can show that use of such criteria reflects its mission and that benefits from diversifying its student body are actually occurring. In other words, simply adding admission criteria based on race preference, especially without being able to demonstrate relevant programming or outcomes, does not shield institutions and programs from legal challenges. Killenbeck said she would like to see a shift of perspective in which diversity is defined as the broad spectrum of characteristics, perspectives, values and assumptions associated with personal identity, rather than something that focuses solely on race and ethnicity. She argues that programs and policies that reduce people to a single denominator are unfortunate and shortsighted.
“She also argues, based on social science research, that it is not enough to simply admit a diverse group of students. Rather, institutions must engage in proactive programming designed to ensure that the values associated with diversity are actually realized. That is, what scholars call ’structural diversity,’ simply having the right mix of students, is a first step in pursuing sound educational policies and practices that will benefit all students.”
Former Justice Sandra Day O’Connor, who wrote the majority opinion in Grutter, raised the legal standard for defending against challenges to racial preferences policies. Under University of California v. Bakke, the landmark racial preferences case before Grutter, schools had more wiggle room to justify the practice. Grutter requires schools to show real, rather than theoretical, educational benefits that justify accepting and denying students based on race.
Did Justice O’Connor intend to raise the legal bar for racial preferences?
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Stories like this are a hoot, and I’m always glad to see a comment section. Common sense injected into obsessive nonsense. Look at all those numbers. Racial bean-counting at its worst.
The freshman class at the University of Georgia at Athens (UGA) is still “mostly white,” (since the U.S. is still mostly white, isn’t this to be expected?) reads the article, but the number of blacks, Hispanics, and Asians (typically a non-preferred minority group) is increasing.
Commenters to the article raise the issue whether UGA uses racial preferences to increase skin deep-only diversity on campus. Does UGA consider race an admissions factor? From the web site:
The proportion of students of color (African American, Latino, Asian American and Native American) at the University of Georgia is small enough that those students are likely to be a “solo minority” or part of a very small group of students, particularly in the small non-lecture-format classes where their contributions to discussion are most valuable. As Gudeman has pointed out, research in social psychology has demonstrated that “a solo is more likely to be objectified and treated as a representative of a category than as a unique person.”
We have a statement from the faculty, posted in the admissions section, implying that a racial minority might feel weird being the only minority in class, because he’s “more likely” to be objectified and perceived as a representative of his racial group, and not as a “unique person.”
Forget about what’s “more likely” to happen. An admissions committee that considers an applicant’s race an admissions qualification definitely is objectifying the minority and treating him as a representative of his group. And why assume a minority’s contributions to the class discussion will be “valuable” based on the color of his skin? Stereotype much? Unbelievable. But they get a pass. Stereotyping is okay when it involves positive traits.
Race neutral alternatives at the University of Georgia have failed to achieve the critical mass of racially and ethnically diverse students to achieve a rich learning environment in our academic community. The University rejects quotas and other mechanical approaches that treat any single factor as a defining feature of an applicant’s file. Nevertheless, it has compelling interest in considering race and ethnicity as one among many factors in consideration for admission.
Nevertheless, it has compelling interest in considering race and ethnicity as one among many factors in consideration for admission.
The answer is yes, UGA considers race an admissions factor. In 2001, the 11th Circuit Court of Appeals found UGA’s racial preferences policy unconstitutional. If that’s the case, why is the school still considering race in admissions? Old-fashioned sleight of hand. The court struck down UGA’s point system, as the U.S. Supreme Court struck down the University of Michigan’s undergraduate point system in Gratz v. Bollinger. UGA continues to use race in admissions, based on the court’s ruling in Grutter v. Bollinger.
The problem with the racial preferences policy, aside from the obvious, is the odor left in its wake. Even if a black student was admitted based on his outstanding and competitive record, with no regard whatsoever for his race, he’s still perceived as an “affirmative action” student. It doesn’t matter how wrong or unfair the perception is. That’s the consequence of racial bean-counting polices. Get rid of them and practice race-neutral admissions, and the odor will dissipate.
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The American Civil Rights Institute’s Jennifer Gratz is featured in a story on NPR about “affirmative action,” also known as racial preferences.
The plaintiff in Gratz. v. Bollinger, in which the U.S. Supreme Court struck down the University of Michigan’s use of a racial point system in admissions, told NPR that there “were rumors in high school that the University of Michigan used race in their admissions policy. I remember hearing that and thinking, ‘There’s no way — that can’t be true.’”
Sadly, it was true, and it’s true in colleges and universities across the country.
In Grutter .v Bollinger, the companion case to Gratz, Justice Sandra Day O’Connor wrote that the court expected racial preferences would no longer be necessary 25 years from now. How she came up with that figure is anyone’s guess, but it was just filler. The court found that the government had a “compelling state interest” in racial diversity, and if lowering standards for black students was the way to achieve it, so be it.
The article quotes people on both sides of the so-called debate. John McWhorter says he has no problem with racial preferences, but doesn’t like the lowered expectations the policy fosters.
“What concerns me is that until you get rid of a system that says B-plus is about as well as you have to do, then that’s about as good as all but a few strange shooting stars are going to do…In general, people do as well as they have to. How can black parents know what it is to qualify your student for Yale and Princeton in the way that white and Asian kids can, if black students can get into those schools without their parents having had to learn those sorts of things?”
Preferences proponent Tim Wise gets the last word, calling out the “myth” of quotas.
“The idea that colleges have to have a certain number of black students and certain number of Latino students just isn’t true. But the overwhelming majority of white folks in all the research I’ve seen believe those lies — believe those myths.”
I don’t know what sort of preferences opponents Wise has talked to, but the ones I know don’t make distinctions between racial quotas and lowered standards for blacks. The point is not that schools set quotas; it’s that schools consider race an admissions qualification, quotas or no quotas.
As far as admissions committees are concerned, race serves as a signifier of certain attributes deemed beneficial in the name of skin deep-only diversity. Rather than moving beyond racial stereotypes and assessing the individual as an individual—not as a member of a preferred racial minority group—we allow our government to hold fast to those stereotypes. As long as they “benefit” blacks. That’s not progress. That’s shameful.
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In 1996, the 5th Circuit Court of Appeals ruled in Hopwood v. Texas that using racial preferences in college admissions to achieve “diversity” was unconstitutional. Texas subsequently adopted the so-called Ten Percent Plan to increase diversity without explicit reference to race. Regardless of a high school’s academic standards, a Texas high school student who graduates in the top 10 percent of his class is guaranteed admission to any government college or university in the state.
Four years later, the U.S. Supreme Court refused to hear an appeal on whether Texas schools should be allowed to admit students based on skin color. However, the University of Texas (UT) stands accused of using race in admissions. In 2008, Abigail Fisher and Rachel Michalewicz challenged UT’s use of racial preferences. They lost in district court, and the 5th Circuit agreed to hear the case.
On Tuesday, a three-judge panel of the 5th Circuit heard arguments in Fisher v. University of Texas. At this writing, the court has not issued a ruling. Either party to the case may appeal to the U.S. Supreme Court.
Last year, UT president William Powers discussed an unintended consequence of the Ten Percent Plan. He said if legislators didn’t alter the policy, UT would run out of room for students who are not admitted under the plan. (Source)
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The Pacific Legal Foundation’s Sharon Browne and the Center for Equal Opportunity’s Roger Clegg have created a model brief (31 pages PDF) for contractors and subcontractors who’ve been shut out of government contracts because of racial preferences.
Preferences proponents typically cite sentiment over the law to justify government discrimination. Black American’s ancestors were slaves, and blacks still living today were oppressed under Jim Crow. Until the “playing field” is level, they argue, the government should be allowed to consider race a hiring, contracting, and admissions qualification, as long as preferred minorities are not on the negative end of the discrimination.
The law is clear on the government’s use of race. It violates the Equal Protection Clause, which mandates that no state shall deny any person within its jurisdiction equal protection of the laws. It protects the rights of the individual, and racial classifications are group classifications. The question becomes, has the personal right to equal protection been infringed by the particular law? Race-based government action, therefore, receives the highest scrutiny by the judicial system. If the race-based measure is narrowly tailored to further a compelling government interest, it’s deemed constitutional.
Browne and Clegg outline the most important arguments against government racial preferences. An excerpt:
RACIAL CLASSIFICATIONS ARE PRESUMPTIVELY UNCONSTITUTIONAL UNDER THE EQUAL PROTECTION CLAUSE AND MUST BE SUBJECTED TO THE STRICTEST JUDICIAL SCRUTINY
[This section can be shortened based upon the knowledge and experience of the court.]
Decisions of the United States Supreme Court have made clear that distinctions between persons based solely upon their ancestry “are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.” Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 214 (1995) (quoting Hirabayashi v. United States, 320 U.S. 81, 100 (1943)). All racial classifications by government are “inherently suspect,” id. at 223, and “presumptively invalid.” Shaw v. Reno, 509 U.S. 630, 643-44 (1993). Accordingly, the core purpose of the Equal Protection Clause is to eliminate governmentally sanctioned racial distinctions. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 495 (1989).
Where the government proposes to ensure participation of “some specified percentage of a particular group merely because of its race or ethnic origin, such a preferential purpose must be rejected . . . as facially invalid. Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake. This the Constitution forbids.” Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 307 (1978).
All governmental action based on explicit racial classifications are subject to strict scrutiny to ensure that the personal right to equal protection has not been infringed. Adarand, 515 U.S. at 227. Thus, before resorting to a race-conscious measure, the government must “identify [the] discrimination [to be remedied], public or private, with some specificity,” and must have a “strong basis in evidence” upon which “to conclude that remedial action [is] necessary.” Croson, 488 U.S. 8 at 500. And even where there is a compelling interest supported by a strong basis in evidence, the program must be narrowly tailored to further that interest. Id. at 506; Adarand, 515 U.S. at 238-39. Moreover, the Supreme Court does not single out hard quotas and set-asides for strict scrutiny. The Court refers generally to any racial classification, and any racially defined goal or target.
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For almost three decades, the city of San Francisco set aside a certain percentage of government contracts for businesses owned by minorities and women, claiming preferences were necessary to remedy discrimination against these groups. After the 9th Circuit Court of Appeals held the ordinance unconstitutional, the city eliminated the set-asides but retained bid discounts and other perks. Coral Construction sued the city on the grounds that the ordinance violated the state’s ban on race- and sex-based preferences.
Yesterday, the California Supreme Court agreed. In a 6-1 ruling, the court upheld the ban. (Download the 81-page opinion in PDF.)
Almost 14 years ago, over half the voters barred the government from discriminating against or granting preferences to individuals or groups based on race in employment, contracting, and education. Since then, opponents have tried to circumvent Proposition 209, and they will continue trying to circumvent Proposition 209.
Last month, a Sacramento Superior Court judge voided a law signed by Governor Arnold Schwarzenegger last year that directed state departments to award government contracts to the lowest responsible bidder subcontracting 15 percent of the work to minority-owned businesses and five percent to female-owned businesses.
In Coral Construction, the court rejected San Francisco’s argument that racial preferences are justified by past discrimination in contracting. And although Proposition 209 exempts state programs that are required to use preferences to remain eligible for federal funds, the court rejected the city’s argument that it qualified for an exemption. The court found that none of the federal regulations San Francisco relied on required the use of preferences.
“Today’s ruling, upholding Proposition 209, is a powerful victory for equal justice under law, and for the rights of all Californians, of every race and color,” Pacific Legal Foundation attorney Sharon Browne said. “As the court recognized, Proposition 209 is a civil rights measure that protects everyone, regardless of background. Under Proposition 209, no one can be victimized by unfair government policies that discriminate or grant preferences based on sex or skin color.”
The court remanded San Francisco’s claim that the U.S. Constitution’s Equal Protection Clause required the ordinance. If the city chooses to re-argue this issue, it will have to show that it “purposefully or intentionally” discriminated against minorities and women, that the ordinance was a remedy, that the ordinance was narrowly tailored, and that discriminating against people on the basis of race and sex is the only or most likely way to rectify the “injury.”
In other words, San Francisco must convincingly argue that purposefully and intentionally discriminating against non-minorities and men is necessary to rectify alleged discrimination against preferred minorities and women.
Good luck with that!
(Photo source: iStock)
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Abigail Fisher and Rachel Michalewicz are suing the University of Texas (UT) at Austin (Fisher v. University of Texas), alleging racial discrimination in admissions. After losing in district court, the plaintiffs appealed to the 5th Circuit. The Texas Tribune reports that the 5th Circuit will hear arguments next month.
If the plaintiffs lose the case, they may appeal to the U.S. Supreme Court. If the court agrees to hear the case, the nine justices will once again grapple with race-based admissions.
The court likely would review its previous decision in Gratz v. Bollinger, in which Jennifer Gratz sued the University of Michigan for racial discrimination in undergraduate admissions. The court ruled that the school’s use of race violated the Equal Protection Clause. The court definitely would look to Grutter v. Bollinger, in which it upheld the University of Michigan law school’s use of race in admissions. Why did the court outlaw preferences in one case and uphold them in another? Michigan’s use of race in law school admissions was relatively subtle compared to undergraduate admissions.
UT uses a so-called holistic approach to admission. It bases admissions decisions on whether applicants graduated in the top 10 percent of their Texas high school graduating classes, where they fall along the socioeconomic continuum, and the percentage of minorities currently enrolled in the schools. The lower court decided this practice was constitutional, based on Grutter.
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California’s Proposition 209, which amended the state constitution to bar the government from granting preferences to or discriminating against individuals or groups based on race, faces legal challenges after almost 14 years. The Coalition to Defend Affirmative Action, Integration, and Immigration Rights By Any Means Necessary (BAMN) filed suit earlier this year, and the Pacific Legal Foundation seeks to intervene in the federal lawsuit.
Laurie Morrow, blogging for the Democracy Project, comments on the latest challenge to overturn the voters’ will in California.
“Rather than defend the will of California voters and the Ninth Circuit, defendants Governor Schwarzenegger, President Yudof, and the University of California Board of Regents have moved to be dismissed from the [BAMN] suit.
“Unlike those entrusted with the governance of the state of California and of its state institutions of higher education, other citizens have the moral courage to demand California’s constitution remain in alignment with Dr. King’s dream and with the will of the people. The California Association of Scholars, the Pacific Legal Foundation, and Ward Connerly, himself a former University of California Regent, a member of the California Association of Scholars, and President of the American Civil Rights Institute, have jointly filed a motion to defend Proposition 209. Here is the Pacific Legal Foundation’s case summary; you can also download a copy of the Motion to Intervene from the same page.
…
“Not everyone shares Dr. King’s belief that a colorblind society is a good thing. Some prefer a society that recognizes race as a qualification for a job or for admission to a college.”
This point can’t be stressed enough. Allowing our government to consider race a job or admissions qualification is a dangerous proposition. Among preference proponents, such policies that favor blacks are “good”; policies that favor whites are “bad.” But a government with the power to discriminate in favor of blacks also has the power to discriminate against blacks. The goal is to keep government from granting preferences to or discriminating against individuals based on race for any reason.
Californians who support colorblind government policy should support candidates committed to protecting and defending Proposition 209.
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Although federal law allows states to bar felons from voting, a three-judge panel of the U.S. 9th Circuit Court of Appeals held that Washington state is violating the Voting Rights Act by barring felons from voting.
Sharon Browne, lead attorney for the Pacific Legal Foundation, and Roger Clegg, president and general counsel of the Center for Equal Opportunity, co-wrote an op-ed for the Los Angeles Times, in which they argue otherwise. An excerpt of: “Felons have lost their right to vote.”
“If a state were to use its felon disenfranchisement laws deliberately to keep blacks from voting, as was sometimes done in the Jim Crow era, then it is clear it would be in violation of the Constitution, and the Supreme Court has so ruled. But what if there is no such discriminatory intent: Is it enough to show that a disproportionate number of, say, African Americans are in prison?
“The answer is clearly no when it comes to the Constitution. The claim in Farrakhan, however, is that such disproportionate ‘results’ are enough to prove a violation of the federal voting rights law. The intent and history of the law refutes this claim.
…
“What’s more, the Constitution explicitly assumes that felons may be barred from voting. The 14th Amendment — which, like the 15th, was passed during Reconstruction to ensure equal treatment of African Americans — acknowledges that states can disenfranchise people for ‘participation in rebellion, or other crime.’ So an interpretation of the Voting Rights Act to bar felon disenfranchisement would not only be inconsistent with the intent of that statute, it would exceed Congress’ constitutional authority.”
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Earlier this year I blogged about the Coalition to Defend Affirmative Action, Integration, and Immigration Rights By Any Means Necessary (BAMN) filing a lawsuit challenging Proposition 209, approved by 54 percent of California voters in 1996. The law bars the state from granting preferences to or discriminating against individuals or groups based on race in government employment, contracting, and education.
BAMN contends, in so many words, that certain racial minorities have a constitutional right to preferential treatment. Among other things, BAMN said Prop. 209 “promised a ‘color-blind’ Constitution. But this was and is a lie…”
The law’s purpose was to create colorblind government policy, not to guarantee equality of outcome. Defying common sense, BAMN compared Prop. 209 to Plessy v. Ferguson (1896), which held that states were permitted to enact laws that separated the races, as long as segregated facilities were “equal.” Plessy permitted racial discrimination. In contrast, Prop. 209 bars the government from such actions.
But why quibble?
The Pacific Legal Foundation (PLE) has issued a call to defend Prop. 209. PLE seeks to intervene in the federal lawsuit.
“Committed supporters with historical ties to Prop. 209 need to be part of this lawsuit,” said PLF lead attorney Sharon Browne. “They must be allowed to intervene because the voters who passed Prop. 209 deserve to be represented, and Prop. 209’s guarantee of equal rights and equal opportunities must be defended credibly and to the max.”
PLE notes that named defendant Governor Arnold Schwarzenegger, who signed a government contracting racial quota bill last year, has moved to be dismissed from the suit.
“The governor and the regents are trying to backpedal out of defending Prop. 209,” Browne said. “And Attorney General Jerry Brown has already tried to sabotage Prop. 209 by sending a brief to the state Supreme Court calling it unconstitutional.”
The American Civil Rights Institute’s (ACRI) Ward Connerly added: “Every individual in this country – including every student and every university applicant – deserves a full measure of equal treatment, not categorization by race or sex. This is the mandate of Prop. 209, and 14 years after its enactment it is time to move forward and fully embrace that goal.”
(Photo: ACRI’s Jennifer Gratz of Gratz v. Bollinger hounded by BAMN protesters)
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