By Kristin S. Ankley

On February 21, 2012 the Supreme Court announced its intention to revisit its prior determination that race may be considered as one of several factors during the admissions process at public universities.  Since the Court’s 5-4 decision in Grutter v. Bollinger in 2003, universities across the country have seen an increased number of minority students enroll in college.  In Grutter, the Court held that the “narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body is not prohibited by the Equal Protection Clause, Title VI [of the Civil Rights Act of 1964], or [42 U.S.C.] § 1981.  Grutter v. Bollinger, 539 U.S. 306 (2003).  The Grutter decision was not without controversy, however, and many have questioned the wisdom of using race in admissions criteria, arguing that it functions as reverse discrimination, is inconsistent with a merit-based society, and thrusts students with insufficient educational foundations into rigorous programs for which they are not fully prepared.

The case that brought this issue back into the spotlight arose in Texas, where Ms. Abigail Fisher, a Caucasian student, was denied admission to the University of Texas.  She is challenging the university’s admission decision, claiming racial discrimination in violation of the Equal Protection Clause and federal civil rights laws.  Ms. Fisher claims that several minority students with lower grades and test scores were admitted to the university, and that even with her superior credentials she was denied admission.  The Fifth Circuit Court of Appeals disagreed with Ms. Fisher, and held that Texas’s “holistic, multi-factor approach, in which race is but one of many considerations” is permissible under the Supreme Court’s decision in GrutterFisher v. University of Texas, 631 F.3d 213, 218 (5th Cir. 2011).  The Fifth Circuit further noted that “[t]he current policy has produced noticeable results,” observing that from 1998 to 2008 the enrollment of African-American students doubled, from 165 to 335. Fisher, 631 F.3d at 226.

Proponents of affirmative action argue that these policies are necessary to redress discrimination, provide equal opportunity for minorities, and increase diversity in the classroom.  Justice O’Connor, writing for the majority in Grutter v. Bollinger, stated that the Constitution “does not prohibit the . . . narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.” 539 U.S. at 343.  Affirmative action polices have certainly increased diversity in university classrooms, helping to foster understanding and acceptance among individuals of differing ethnic, cultural, and racial backgrounds.   However, many believe that this benefit has hidden costs.

Opponents argue that affirmative action policies are simply a form of reverse discrimination.  According to Althea K. Nagai, Ph.D., a research fellow for the Center for Equal Opportunity, the average disparity in SAT scores between African-American and Caucasian students admitted to the University of Michigan was 190 points in 2005.  This is a significant gap, and it has led some to believe that race is not just one factor among several, but a primary or weighted factor, in making admissions decisions at universities with affirmative action policies.  Is this reverse discrimination?  Opponents urge that it is, and ask us to imagine what would happen if Caucasian students benefited from an institutionalized admissions preference despite having average test scores 190 points below the average African American test score.  Opponents don’t discount the benefit of diversity, but argue that affirmative action is not an appropriate means to reach that end because racial preference of any sort compromises one of our most deeply held convictions: equality before the law.  Even Martin Luther King, Jr.’s “I Have a Dream” speech, in which he stated, “I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin, but by the content of their character,” spoke of an ideal where the color of one’s skin would be irrelevant.

Opponents also argue that affirmative action does not necessarily benefit the most disadvantaged students.  Thomas Sowell, a respected African-American economist, has observed that minority preferences primarily benefit minority applicants from middle- and upper-class backgrounds, and actually hurt economically disadvantaged Caucasian students.  This finding likely stems from the reality that fewer students from lower-class families, regardless of race, apply to college at all, and the lower-class Caucasian students who do apply receive no benefit from affirmative action policies.  Mr. Sowell argues that if affirmative action were truly meant to remedy a disadvantage, preference would be based on each student’s specific, individual background and personal struggles, and not on the basis of his or her race.

Opponents also claim that affirmative action is actually damaging to minority students because their meritorious achievements are often overlooked or even doubted due to the assumption that their success stems from unearned opportunities awarded solely to increase “diversity.”  Justice Clarence Thomas, speaking from his own experience, has identified this effect as one of the most damaging aspects of affirmative action.  Justice Thomas received his law degree from Yale, and struggled to find a job after graduating.  He explained that during interviews, attorneys treated him “dismissively” and asked “pointed questions, unsubtly suggesting that they doubted [he] was as smart as [his] grades indicated.”  In response to this treatment, he stated, “[n]ow I knew what a law degree from Yale was worth when it bore the taint of racial preference. I was humiliated—and desperate.”  Opponents argue that if opportunities were awarded solely based on merit, this doubt would disappear, and all students, regardless of race, could take pride in their accomplishments knowing full well that they earned them.

A final justification often cited by affirmative action proponents is the need to end educational and economic disparities between races.  Few would dispute the importance of this goal, but many dispute affirmative action as the appropriate method used to achieve it.  Opponents argue that this problem cannot be addressed through affirmative action because these disparities take root very early in a child’s life, based on factors such as family dynamics, whether the child grew up in a single-parent home, the values instilled by the child’s parents, and inequality in the primary education system.  According to the Heritage Foundation, which examined data from the U.S. Department of Labor’s National Longitudinal Survey of Youth, one of the primary drivers of childhood poverty is presence in a single-parent household and dependency on welfare benefits.  Based on this theory, the economic disparity among African-American and Caucasian children is partly explained by the fact that 72 percent of African-American children were born out of wedlock in 2008, compared to only 29 percent of Caucasian children.

Opponents argue that a more effective approach to solving racial inequality is to focus on strengthening minority families, which will lead to a more stable and supportive environment where children can flourish.  Congress must also make education reform a top priority, as this is where children will learn the skills they need to compete in the college admissions process, and more importantly, in the workforce upon graduation.  Opponents argue that if the primary education system was functioning properly, affirmative action wouldn’t be necessary to “level the playing field.”  Admittedly, accomplishing change through these methods may be more difficult than simply implementing affirmative action policies, but many believe they would better address the root of the problem and also avoid many of the “cons” of affirmative action.

Both sides of this debate make valid points, and questions surrounding affirmative action may be some of the most difficult ones facing society today.  The legal justification for affirmative action, however, appears to rest on shifting ground.  The crux of the Court’s ruling in Grutter was its finding that affirmative action promotes a compelling interest: diversity.  In the nine years since the Court’s decision, university policies have made strides toward achieving this goal.  Twenty-five years ago minorities made up less than 1 percent of the student population at Harvard University, and today that number has climbed to 30 percent.  Additionally, many opponents have pointed out that diversity encompasses far more than differences in race.  There are many places in the United States where the population is still mostly, if not almost entirely, Caucasian, but even these racially homogenous locations have wealth, poverty, varying religious beliefs, drug abuse, domestic abuse, tremendous successes, and life-altering failures.  Diversity cannot be defined solely along racial lines.

Based on these considerations, one of the key questions that the Supreme Court will be forced to examine next term is whether race as a consideration in the university admissions process is still justified as promoting the “compelling interest” of diversity.  Justice O’Connor, who penned the majority opinion in Grutter, recognized that such a justification may expire in the future, and warned that “race-conscious admissions policies must be limited in time,” as “[e]nshrining a permanent justification for racial preferences would offend [the] fundamental [principle of] equal protection.” 539 U.S. at 342.  The question facing the Court next term is whether that time has arrived.


Grutter v. Bollinger, 539 U.S. 306 (2003)

Fisher v. University of Texas, 631 F.3d 213, 218 (5th Cir. 2011)