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SCOTUS Lets Affirmative Action Stand for Now

Updated on June 30, 2013

The Supreme Court in Fisherv. University of Texas Rule Narrowly, Allowing Affirmative Action to Stand

SCOTUS Lets Stand Affirmative Action—For Now

The Supreme Court of the United States on Monday sidestepped a sweeping ruling on affirmative action and sent the case back to the Fifth Circuit Court for further proceedings. Delivering the opinion of the Court, Justice Kennedy wrote: “The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with the opinion.” “The lower courts,” he wrote, “were too deferential to the University’s judgment upon reviewing its admission plan.” The University of Texas must provide to the reviewing court sufficient evidence that “no workable race-neutral alternative could produce the education benefits of diversity.” Therefore, race as a factor in admissions policy can still be used if diversity cannot be obtained without it.

Effectively, affirmative action was allowed to live another day but on “life-support,” so to speak. Clearly, the Court’s goal is “race neutrality,” but affirmative action was initiated to atone for minorities’ lack of knowledge and skills caused by centuries of slavery and segregation.

Crippled by nearly a century and a half of slavery and nearly 100 years of discrimination, blacks in the 1960s were still not privy to the Equal Protection Claus of the Fourteenth Amendment and, therefore, lacking in adequate knowledge and skills needed to compete with whites in schools of higher education and the workplace. President Lyndon Johnson, in his eloquent speech to the graduating class at Howard University in 1965 as quoted by Borgna Brunner on the website, voiced this sentiment: “You do not wipe away the scars of centuries by saying: ‘now, you are free to go where you want, do as you desire, and choose the leaders you please.’ You do not take a man who for years has been hobbled by chains, liberate him, bring him to the starting line of a race, saying ‘you are free to compete with all others,’ and still believe you have been completely fair....” Affirmative action was created to ensure that blacks and other minorities enjoy the same opportunities of promotion, salary increases, career advancement, school admission, and other opportunities that had been almost exclusive province of whites. That included making allowances for non-competitive skills and training as a temporary measure to atone for years of slavery and discrimination.

The term was first used in 1961 when President John F. Kennedy used it in Executive Order number 10925 instructing federal contractors to use “affirmation action to ensure that applicants are treated without regard to race, color, religion, sex, of national origin.” Three years later, President Lyndon B. Johnson signed into law the 1964 Civil Rights Act, extending Kennedy’s Executive Order and making virtually all employment discrimination illegal, and in 1965 issued Executive Order 11246 to enforce affirmative action policies for the first time and in 1967 amended the Order to cover discrimination on the basis of gender.

In 1969, President Richard Nixon initiated the “Philadelphia Order,” which became the most potent measure to that date to guarantee fair hiring practices in construction jobs. The Order included concrete timelines and goals for the construction industry, which was hostile to hiring blacks, to show increases in the hiring of minorities, giving rise to the term “quotas.” Nixon asserted: “We would not impose quotas, but would require federal contractors to show affirmative action to meet the goals of increasing minority employment,” as quoted by Brunner.

In less than two decades after the start of affirmative action, the good attitudes toward it began to turn sour as angry whites began protesting. Claiming that some unqualified minorities were getting a “free ride,” they began using terms such as “preferential treatment,” “quotas,” and “reverse discrimination.” They began saying that preferential treatment based on minority status leads to reverse discrimination, lowers standards of accountability, ensures a continued color-divided society, relegates minorities to inferior status, and renders minorities dependent. The hugest complaints, however, have been about alleged “set-asides,” “quotas,” and “lower standards for minorities.”

After the attitude change, about a dozen or more complainants have brought cases to the Court, challenging the constitutional legality of affirmation action in both higher education admission policy and the workplace.

Note a few cases: In 1978, in Regents of the University of California v. Bakke, the Court ruled that race as a factor could be used in university admissions standards, but the school could not reserve admission spots for disadvantaged minority students. In fact, the Court allowed race to be used as a factor in college admissions policy but struck down set-asides.

In 1978 in the United Steel Workers AFL-CIO v. Weber, the Court ruled that affirmative action could be used to reduce discrimination in employment on a temporary basis so long as the system did not infringe on the rights of white employees.

However, in 1980 in Fullilove v. Klutznick, the Court ruled that “some modest quotas were perfectly lawful.” Reversing that decision in 1989 in the City of Richmond v. Croson, the Court ruled that an “amorphous claim that there has been past discrimination in a particular industry cannot justify the use of an unyielding racial quota.”

Fisher v. University of Texas Austin was decided on the basis of Bakke, Gratz, and Grutter in which the Court ruled that race may be used as a factor in the achievement of the University’s mission of diversity but the policy must withstand legal “scrutiny” to determine if it was necessary to achieve its goal.

In the Fisher ruling, proponents and opponents claim victory. But the truth is: Things remain virtually the same. Although allowed to stand, affirmative action, no doubt, is on “life- support,” so to speak—and has been for some time.

The Court’s seven-to-one decision with one dissenting vote and one member not participating seems to have been an overwhelming victory for minorities, but the vote was no more than compromise. According to the concurring opinions, two of the conservative justices indicated their desire to end affirmative action. For example, Justice Scalia wrote: “The petitioner in this case did not ask us to overrule Grutter’s holding that ‘compelling interest’ in educational benefits of diversity can justify racial preferences in university admission,” and Justice Thomas wrote: “I write separately to explain that I would override Grutter v. Bollinger… and hold that a state’s use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause.” These statements indicate that the Court will pull the plug on affirmation action in the next session.

With the majority of the Supreme Court justices believing affirmation action is unconstitutional and with public support decreasing over the past two decades from 61 percent in 1961 to 45 percent in 2013, according to a NBC/Wall Street Journal poll conducted from May 30, to June 2, affirmative action is allowed to survive on an artificial mechanism (court scrutiny to determine the necessity of “race” as a factor to achieve diversity).

As painstaking as it is, affirmative action is on life-support, and civil rights groups and progressive politicians, therefore, might as well start making preparations for the next chapter in the quest for equal opportunity under the law.


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    • Lawrence L Beale profile image

      Lawrence L Beale 4 years ago

      Thanks for your comment. As I have experienced during my lifetime, the highest qualifying factor in getting hired or not getting hired was race--black or white. That has changed to some extent but not totality.

    • Superkev profile image

      Superkev 4 years ago

      Either you are qualified and capable to do the job you are applying for and can demonstrate such to a specific standard, or you cannot.

      Affirmative Action is the soft racism of lowered expectations.