Publication Date

July 1, 2013

Perspectives Section




In 1950, the US Supreme Court ruled in Sweatt v. Painter that the University of Texas Law School had violated the clause of the 14th Amendment guaranteeing “equal protection of the laws” when it rejected a black applicant solely on the basis of race. Sweatt served as an important precedent in the court’s Brown v. Board of Education decision four years later that cited the same clause of the Constitution to outlaw segregation in public schools. In 1996, the Fifth Circuit Court of Appeals ruled inHopwood v. Texas that the Texas law school had again violated the 14th Amendment when it rejected a white applicant-who claimed to be better qualified than many black applicants who were accepted-on the basis of race. The difference between 1950 and 1996 was the implementation of affirmative action: The effort to remedy centuries of racism and legally sanctioned discrimination by expanding opportunity to members of minority groups long excluded from education and other spheres of American society.

Whether affirmative action violates the Constitution’s guarantee to equal protection by treating individuals differently because of race has bedeviled the Supreme Court for a generation. It has also bedeviled the American people, who give conflicting views on the subject depending on how it is presented: When asked if institutions-schools, businesses, and public agencies-should reflect the racial, ethnic, and gender makeup of the community they serve, most Americans say yes; but when asked if such institutions should favor people based on such qualities, they say no. The challenge is how can the United States achieve the laudable goal of inclusion but not apply the characteristics commonly used to measure inclusion-race, ethnicity, gender-when choosing to accept or hire someone?

Following the Court of Appeals’ rejection of the University of Texas School of Law’s affirmative action program in 1996, a decision the Supreme Court declined to review, Texas instituted a new program to achieve the same goal-racial diversity-but with a different approach. Instead of directly allowing racial preferences, the state enacted the Top Ten Percent Plan, which ensured admission to a public university to high school students who graduated in the top 10 percent of their class. Because many high schools in Texas (and other states) remain divided by race, the plan effectively guaranteed admission of a critical number of black and minority students to college. In Fisher v. University of Texas, a case decided on June 24, 2013, a white student claimed that the Top Ten Percent Plan was affirmative action in all but name, and thus a violation of the equal protection clause of the 14th Amendment. Rather than rule on the merits of the case, the Court remanded it to a lower court for further review.

Despite punting on the issue, there is little question where the Supreme Court is heading. When the court first ruled on affirmative action in higher education in Regents of the University of California v. Bakke in 1977, Justice Lewis Powell wrote that using affirmative action to remedy past discrimination violated the Constitution. The only acceptable constitutional grounds for employing racial categories, he ruled, was for “obtaining the educational benefits that flow from an ethnically diverse student body.” As a result of Powell’s opinion, “diversity” became the watchword for affirmative action, which supporters have invoked for the past three and a half decades. And yet affirmative action did not sit well with the justices. Even one of its supporters, Justice Harry Blackmun, looked forward to its demise. “I yield to no one,” he wrote in his own opinion in Bakke, “in my earnest hope that the time will come when an ‘affirmative action’ program is unnecessary and is, in truth, only a relic of the past.”

A quarter-century later, in 2003, the Supreme Court revisited affirmative action in higher education inGrutter v. Bollinger. The court upheld Bakke, finding that categorizing people by race to create a diverse student body remained constitutionally valid, but that the methods to achieve this were subject to “strict scrutiny” by the courts. A victory for affirmative action, perhaps. But in her majority opinion, Justice Sandra Day O’Connor echoed Justice Blackmun that the policy’s days were numbered: “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

Ten years have passed since O’Connor’s ruling. The Supreme Court’s recent opinion in Fisher held that the lower court had failed to apply “strict scrutiny.” It is likely that, regardless of which way the lower court rules once it reviews the case, it will return to the Supreme Court. And barring a change in justices, there is little doubt which way the court will rule. In Grutter, Justices Anthony Kennedy, Antonin Scalia, and Clarence Thomas all dissented, arguing that affirmative action is unconstitutional, a sentiment Thomas repeated in a concurring opinion in Fisher. In Parents Involved in Community Schools v. Seattle School District No. 1 in 2007, Chief Justice John Roberts wrote a decision, joined by Justice Samuel Alito, sharply narrowing the use of affirmative action to achieve racial balance in schools. “The way to stop discrimination on the basis of race,” Roberts wrote, “is to stop discriminating on the basis of race.

“Thus five of the Court’s members are on record opposing affirmative action-in many cases strongly. It is likely that O’Connor’s “25 years” will come much sooner.

-, PhD, is author of Closing the Gate: Race, Politics, and the Chinese Exclusion Act (1998) and publisher of many reference books, including Justices of the United States Supreme Court (2013). He is editor-in-chief at Facts On File.

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