What the Supreme Court’s ruling means for the future of affirmative action

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How Affirmative Action Survived The Roberts Court

By Nicole Flatow/Think Progress

The U.S. Supreme Court punted Monday on what could have been a major ruling on the future of affirmative action. In what is arguably the narrowest ruling that could have been expected from the Court that claimed in a plurality opinion that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” the justices rejected the lower court’s approval of the University of Texas at Austin’s affirmative action plan. The decision means the trial court will have to review UT-Austin’s affirmative action plan once again — this time with even more skepticism. The constitutionality of race in university admissions, however, survived.

At issue was a University of Texas at Austin plan with two parts: First, the university automatically admits Texas students in the top ten percent of their high school classes. After that, it considers the remaining applications on a case-by-case basis, considering a host of factors that could enrich and diversify the university experience, one of which is race. As the lower court described Texas’ plan, race is considered as a “factor of a factor of a factor of a factor.”

The U.S. Supreme Court has previously upheld the consideration of race to achieve diversity in university admissions, but many court-watchers expected the court to erode this principle at least in part, and the justices reinforced this suspicion with their hostile comments during oral argument. In today’s ruling, however, they appear to have cobbled together a five-justice compromise that foreclosed the demise of affirmative action. Democratic appointees Stephen Breyer and Sonia Sotomayor joined the majority opinion by Justice Anthony Kennedy. Justices Antonin Scalia and Clarence Thomas took separate, more conservative positions. The majority opinion left in place the holding that diversity is a compelling state interest, and that universities may consider race as a factor in achieving that goal, so long as their policy is “narrowly tailored.”

The catch is that today’s ruling may have made it even more difficult for universities to prove that their policies are “narrowly tailored.” After all, the last decision to consider this standardten years ago explicitly suggested that a policy like UT-Austin’s would pass muster, with Justice Sandra Day O’Connor writing that even when universities implement a percentage plan, “they may preclude the university from conducting the individualized assessments necessary to assemble a student body that is not just racially diverse, but diverse along all the qualities valued by the university.”

Because a U.S. Supreme Court with a different ideological divide seemed to have endorsed a plan much like the one implemented by the University of Texas, many predicted that the U.S. Supreme Court granted review of this latest challenge to reconsider that standard. Instead, Justice Anthony Kennedy left the standard in place, but instructed the trial judge to be even more skeptical toward UT-Austin in its application of this standard:

The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity. If “‘a nonracial approach . . . could promote the substantial interest about as well and at tolerable administrative expense,’” then the university may not consider
race.

According to Justice Ruth Bader Ginsburg, the U.S. Court of Appeals for the Fifth Circuit arguably already applied such scrutiny, and she cautions in a lone a dissent that even greater skepticism may drive universities toward more covert action:

I have said before and reiterate here that only an ostrich could regard the supposedly neutral alternatives as race unconscious. As Justice Souter observed, the vaunted alternatives suffer from “the disadvantage of deliberate obfuscation.” … if universities cannot explicitly include race as a factor, many may “resort to camouflage” to “maintain their minority enrollment.”

As demonstrated by the raft of amicus briefs filed in the case, universities, businesses, and political leaders have a strong continuing interest in achieving diversity. Statistics after state bans on affirmative action have shown that numbers of minority students dropped precipitously immediately after bans were implemented.

Today’s ruling allows universities to continue implementing diversity plans, but it does not preclude these state bans. In another case that once again threatens the future viability of affirmative action, the U.S. Supreme Court will review a state ban next term.

Federal court: Michigan ban on race in college admissions illegal

BY DAVID ASHENFELTER ANDDAWSON BELL

A federal appeals court today struck down Proposal 2, the Michigan referendum that banned affirmative action in college admissions, employment and contracting, setting up another U.S. Supreme Court showdown on the issue.

“It’s a tremendous victory,” Detroit attorney George Washington said today, shortly after the U.S. 6th Circuit Court of Appeals ruled in a 2-1 decision that Proposal 2 was unconstitutional.

“Affirmative action is now legal in college admissions in Michigan and that means thousands of black, Latin and native American students who would have been excluded from our best undergraduate and graduate programs will now be admitted,” Washington said.

There was no immediate comment from the Michigan Attorney General’s Office, but Washington, who represents a coalition of organizations that fought the 2006 ballot proposal, said he expects the state to ask the entire U.S. 6th Circuit to review the decision and, if that fails, ask the U.S. Supreme Court to take up the issue.

Jennifer Gratz, who led the campaign for passage of Proposal 2 following the conclusion of her own lawsuit against the University of Michigan for using race-based admissions, said this morning she had not yet reviewed the 6th Circuit decision. 

But an appeal is almost certain, she said, and “I can’t imagine this ruling will stand.”

Oklahoma GOP Lawmaker Sally Kern: ‘Blacks’ Don’t Work As Hard As White People

By Alex Seitz-Wald

The Republican-controlled Oklahoma House of Representatives passed a proposed constitutional amendment yesterday that wouldeliminate Affirmative Action in state government. The offical GOP reasoning for the change is that while “discrimination exists,” “I don’t think Affirmative Action has been as successful as we like to believe,” the bill’s sponsor, state Rep. T.W. Shannon (R), explained. But perpetual extremist state Rep. Sally Kern (R) offered her argument for ending the system that helps minorities advance: “blacks” simply don’t work as hard as whites:

Rep. Sally Kern, R-Oklahoma City, said minorities earn less than white people because they don’t work as hard and have less initiative.
“We have a high percentage of blacks in prison, and that’s tragic, but are they in prison just because they are black or because they don’t want to study as hard in school? I’ve taught school, and I saw a lot of people of color who didn’t study hard because they said the government would take care of them.”
Kern said women earn less than men because “they tend to spend more time at home with their families.”

While Kern has long history of taking outlandish positions — from saying homosexuality is more dangerous than terrorism to introducing legislation to force teachers to question evolution — her bigoted comments reflect a disturbing trendamong even mainstream conservatives to blame valuable social safety net programs for creating a culture of dependency or even “slavery.” (h/t: reader Dustin)

UPDATEWatch Kern's remarks on blacks:

KERN: We have heard tonight already that in prison there's more black people. Yes, there are, and that's tragic, it's tragic that our prisons here in Oklahoma, what are they, 99% occupancy? But the other side of the story, perhaps this is something we need to consider: is this just because they are black that they're in prison or because they don't want to work hard in school? White people oftentimes don't want to work hard in school, or Asians, oftentimes. A lot of times, that's what happens. I've taught school for twenty years, and I saw a lot of people of color who didn't want to work as hard, they wanted it given to them. As a matter of fact I had one student who said, "I don't need to study, you know why? Because the government is gonna care of me." That's kind of revealing there. Equal opportunity, not equal results.

Kern asserting that "women usually don't want to work as hard as a man":

KERN: You see, women usually don't want to work as hard as a man, because, now I mean, now get me, wait a minute, now listen to me, women, hang on, women tend to think a little bit more about their family, wanting to be at home more time, want to have a little more leisure time, that's all I mean. I'm not saying women don't work hard. I think women work very hard, so don't take that the wrong way. But that's fact as you have to keep in mind, okay? Women like to be willing to have a moderate work life with plenty of time for spouse and children and other things like that, that's all I meant, okay. They work very hard. But sometimes they aren't willing to commit all their life to a job like a lot of men do. That's all I meant by that. All right.

M.C.L Comment: MS.Kern should look in the mirror because  the majority of people who benefit from Affirmative action are white women.