Supreme Court To Revisit Affirmative Action In University Of Texas Case

WASHINGTON -- Affirmative action is heading back to the Supreme Court, and this time its prospects for survival are poorer than ever.

The Court announced on Tuesday that it has agreed to hear a challenge to the University of Texas' affirmative action program, which is used in sorting through applications after the automatic admission of all in-state applicants who graduated in the top 10 percent of their high school class.

The state's top 10 percent law was passed as a race-neutral way of facilitating diversity on campus after a federal appeals court in 1996 banned affirmative action in Texas' public universities. Then in 2003, the U.S. Supreme Court -- in a majority opinion written by Justice Sandra Day O'Connor for herself and the Court's four liberals -- approved of certain types of race-conscious admissions practices in higher education for the purpose of achieving a diverse student body. In response, the University of Texas reinstated affirmative action, this time to assess applicants who would not be automatically admitted under the top 10 percent law.

Abigail Noel Fisher was one such student. In Fisher v. University of Texas, she claims that she was unconstitutionally denied admission because she is white. Texas argues that the use of race in its admissions process is indistinguishable from the University of Michigan Law School practices that the Supreme Court approved in 2003.

Unfortunately for Texas, that argument may no longer hold sway at the high court. Justice Samuel Alito, a reliable conservative vote, has since replaced O'Connor, a notable swing vote. In 2007, Alito joined with Chief Justice John Roberts and Justices Antonin Scalia and Clarence Thomas to strike down affirmative action programs in public high schools in an opinion that concluded, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

Justice Anthony Kennedy voted with the majority but refused to join that one sentence in 2007, and will likely spoil the conservative bloc's effort to end affirmative action once and for all this time. That does not mean, however, that Kennedy will uphold Texas' race-based policy. Rather, he may use his crucial fifth vote to keep affirmative action constitutional in theory, but almost impossible to pursue in practice -- a position he staked out in his dissent from O'Connor's 2003 opinion.

Justice Elena Kagan has recused herself, likely because of her participation in the early stages of the case when she served as U.S. solicitor general.

Fisher v. University of Texas could be argued (but not decided) in the fall, just in time to insert its racially charged issues into the tail end of the presidential election.

Comments

[Cyberfox]

07:35 AM on 04/11/2012

Best thing this country can do for itself is to change how we hire people and let people into organizations. We need to get away from race, gender, sexual orientation and get into basing admittance and hiring practice upon education, experience, ability, and talent. Race, gender, and sexual orientation bring nothing of value to a work place or an institute of hither learning.

[Cyberfox]

07:32 AM on 04/11/2012

Affirmative Action is nothing more than gov't approved racism against whites. It needs to be ended.

[Sammich Mann]

04:57 PM on 03/09/2012

Azylum is one who likes to play with himself. This very much relates to the article at hand here... lol.. hand...

Coincidence? I do now think so, son..

[Apanel]

11:34 AM on 02/27/2012

What's most interesting about affirmative action is that the first couple of hundred years of our country's existence employed affirmative action for white men only. This has created a culture and society where this specific group, for the most part, holds all the power, money, land and anything else of value in the country. Every other segment has had to fight a battle, often bloody and fatal, to secure and be able to exercise the rights that were always theirs but denied by this other particular minority.

When affirmative action started to lose ground and popularity is when other groups demanded their fair share of the American dream. The white male establishment of this country has never tolerated this. All of a sudden, after 200 years, this is an inequitable practice and discriminatory. It was pretty good when they were building their empire but now? Not so much. And most would say they've gotten where they are in life and have what they have based on hard work and their own merits yet they never seem to acknowledge that we live in a society that had been stacking all the cards against everyone else for hundreds of years. NOW, all those other groups are expected to do what white males have never had to...change their position in life with no advantage over the reigning ruling class.

Very sad, angry and "disenfranchised" white men are just about the biggest whiners of all.

[Sammich Mann]

05:00 PM on 03/09/2012

I concur due to certain strong lifestyle preferences of Azylum. He's the one to watch out for.

[Cyberfox]

07:33 AM on 04/11/2012

Love your spin and how it ISN'T founded in reality. Asians outperform whites regularly - they actually control an awful lot of land and money.

[ColoLibertarian]

02:30 PM on 02/26/2012

Question: Should it be against the law to discriminate against some one because the color of their skin?

Answer that and you have answered whether we should continue affirmative action. AA is nothing more than legalized discrimination against white males.

I am a Native American and I am willing to admit that discrimination based on any God given trait is wrong. It is time for us to stop dividing and start uniting.

[massjim]

08:50 AM on 02/26/2012

The most likely scenario is that we end up with a reasonable compromise, Universities are not allowed to factor in race, but are allowed to consider wealth. Wealth equals opportunity far more than skin color.

[ModernMisanthrope]

01:13 AM on 03/08/2012

Given that that wealth is disproportionately concentrated in the hands of the white (for now) majority where does that leave the fight to address years of systemic inequity? Meaning if opportunity is tied to wealth as you suggest and that wealth is controlled by the group already in a position of greatest advantage how then can anything but the status quo persist?

[massjim]

08:40 AM on 02/26/2012

I would tell black kids that they are capable of doing anything they put their minds too. They are not inferior ... they are not held back by slavery that ended 150 years ago, or an inability to retain facts and answer questions on tests.

[Kingpleasure]

12:08 PM on 02/26/2012

massjim:"they are not held back by slavery that ended 150 years ago, or an inability to retain facts and answer questions on tests.

So I guess according to 'your history' there was no such thing as Jim Crow laws, which occurred after slavery, and that didn't end (on the books) until the Civil Rights act of 1964 passed along with Title VII. Of course just because that law passed on the books, didn't mean that whites rushed out eagerly willing to finally grant access to blacks to opportunities denied to them in this country. It would be nearly another 20 years would pass before blacks could freely access opportunities that whites have long enjoyed in education, economics, socio-economics, financial, medical. So only until about the 1980's. In your mind when slavery ended... blacks really were liberated and free to enjoy all the liberties that whites have long enjoyed... Since you believe blacks are not held back, would you trade your race to be black and walk in their shoes now that according to you, everything is equal and they are no longer affected? Wow.. you really have no REAL clue of history in this country. But I'm going to help you out, if you care to be enlightened.
Watch these two online programs, and then go out and read 'The People's History of the United States by Howard Zinn.
http://video.pbs.org/program/slavery-another-name/

http://www.youtube.com/watch?v=mW764dXEI_8

[massjim]

02:39 PM on 02/26/2012

Racism is wrong, no matter what the skin color of the beneficiary. It looks like we're heading in the direction of getting rid of affirmative action in favor of allowing universities to consider the advantages that the wealthy have over the poor ... I'd say that's an improvement.

[massjim]

07:48 PM on 02/26/2012

Ok, I give up. Black kids, never mind. Kingpleasure seems convinced that you can't compete on your own. Sorry, everything my experiences tell me ( among them voting for a black man to be my President ) tells me that you shouldn't consider skin color in determing someone's ability, but so many people seem to feel otherwise.

[Thenintyninepointfive]

08:31 PM on 02/25/2012

It will be interesting to see how white conservatives feel one day when Asians and Indians start increasing their enrollments to the point where many whites get left out. It's ez to cry foul now but the question is when the shoe is on the other foot how will you justify what your saying now then?

[massjim]

08:15 AM on 02/26/2012

Absolutely, right now the ones most discriminated against in admissions are Asians, who have to get higher SAT scores than Whites, who have to get higher test scores than blacks to get admitted. The way to stop discriminating, is to stop discriminating.

[Njeanous]

12:41 PM on 02/25/2012

There is no such place as negro land! People are named for the lands from which they originate. This a name derived by the white slave master for a people they “purchase." African Americans are the only people in America who did not come here looking for a brighter day with the exception of native Americans. Blacks were brought here forcibly to work not for minimum wage but no wage, so long ago and under such brutal and divisive tactics that their link to their motherland is virtually impossible. Yet they have managed against all odds to build a nation and enrich it with inventions from granulated sugar to the cell phone. And still 75 years ago one could not be seen in a television program or commercial.
The fact that we are even still discussing whether or not the disadvantages they have faced merits some type of field leveling is indicative of the reality that they are excluded from coverage in the most libertarian of views. Ron and Rand Paul are prime examples of the racist libertarian views that offer freedom to everyone but Crispus Attucks (Google him).

[moonlightesq]

04:34 PM on 02/24/2012

Affirmative action works to exclude many Asian American college students, which is also unfair.

[mwr133]

04:27 PM on 02/24/2012

What's racist about me "not trusting whites" you need to learn comprehension, no I don't trust the vast majority of white Americans. People like you can can judge Black People on poverty, crime and whatnot but if someone says he's doesn't trust you that's racist?

===============================================

I hate to break it to you, but the rest of America would be laughing at the majority of the black community if it weren't so darn sad. You dont trust the majority of whites? Well, the majority of Americans don't trust blacks. Look at where the majority of crime is in this country, and who is committing it. For only making up about 20% of the population, ya'll do a lot of damage.

[mchcallow]

05:19 PM on 02/25/2012

That's laughable. Which crimes are we talking about here mw. You see, the prisons are littered with folk of color, many of whom are there for non violent charges involving either the use or distribution of drugs. What's interesting about the number of folk who are in prisons is that many like you fail to acknowledge the disparity with which drug charges are handed down. Crack has a harsher prison sentence compared to cocaine and one need have more cocaine in their possession compared to crack to warrant the same prison sentence.

Let's not talk about all of the 'white collar crimes'. How many of the bank exec's went to prison after fleecing America? Laughable...

Next, we live in a society where some communities are dependent on the prisons for survival. Those white prison guards in rural CNY for instance may very well be committing crime instead of enforcing law if not for the industrial prison complex and the revolving doors that lock folk of color up-restrict their ability to get jobs that don't pay minimum wage-violations of probation for let's say substance use means a return to the system.

So dependent on this complex are we that we have shows like Lock Up Extended Stay to get our fix. Take your racist foolery elsewhere because it's a fail on so many levels...

[Taylor Fuentes]

02:47 PM on 02/24/2012

You can't look at applications in a colorblind manner. Minority students have unequal opportunities in education, healthcare, and the workplace. This needs to be taken into consideration when it comes to college applications. This isn't about "punishing whites" it's about recognizing that the playing field is not leveled. There are schools that literally have no textbooks for some courses, that don't offer AP or IB courses. How can a student go to a school like that and then be expected to compete with a student who has access to those things?

[massjim]

08:46 AM on 02/26/2012

So you agree that poor whites should be favored over wealthy blacks for admissions?

[demsrsilly]

07:43 AM on 04/11/2012

Basing admission on race is racist by definition.

[Wide Stance]

12:29 PM on 02/24/2012

"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."--Roberts

Circular reasoning. Affirmative action exists because the field isn't level.

[Nick Fortune]

01:32 PM on 02/24/2012

And who makes the decision to reward one group and punish another? White guilt-ridden liberals and blacks? How do you determine if it's level and when? In the meantime whites will be the whipping boys or scapegoats?

[Wide Stance]

09:19 PM on 02/24/2012

Huh? That's good, bigoted jibberish.

[Jeramie Shebester]

09:49 AM on 02/25/2012

To them it will never be level, because leveling the playing field is not the goal anyway. Punishment is the goal, and there will never be enough of that.

[massjim]

08:48 AM on 02/26/2012

Yes, the field isn't level, but of course the greatest indicator of opportunity is wealth, not skin color. Of course a poor white student should be favored over a wealthy black student who had the opportunity to attend a private school and superior early education?

[aresponse2dotcom]

06:40 PM on 02/23/2012

The amount of time it takes to turn around the train of society is not a question of time as much as one of method. Fueling the racial distrust held by most of the "black" community can not be considered a healer. Equal status in education will only occur when there is equal or enhanced impetus for the acquisition of knowledge. That equality cannot be achieved at the point of college entrance. The equality of the mind does not start at the end of the high school years, nor does it occur because of color. Mental achievement in the majority of cases is due to the spark of interest in a subject and the desire to excel. Adding another log of what the “black” person is owed, because of the sins of the past only serves to inhibit necessary growth. Achievement of equality is not going to be achieved through the adherence to the anger, the hatred and the feel sorry for me attitudes that so many leaders in the African American community promote. The answer is not in getting even the answer is not in getting a first prize trophy when you place last. the answer is providing real education by paying great teachers, not administrators, a bonus for going into blighted elementary and secondary schools. The underprivileged are not so because of color as much as because they have been taught that their color is a detriment.

[Cynth]

11:31 PM on 02/23/2012

Yes, tell the people who have less access to education, health, and other resources from birth that their lack of advantage is all in their heads. Much of what you say sounds great, in theory, but you ignore a host of sociological, economic, political, and historical factors that contribute or inhibit individual and groups success. The underprivileged do not control the lack of opportunities available to them that stem from to lack of resources, racist employers and administrators, and policies that favor the haves and those in power.

Tell me, how does someone who comes from a single parent household in which the parent works two jobs and has limited education find the parental, educational, and social guidance that is available to the privileged? How does that child begin to gain the ground that is lost compared to another child who has two available parents, a nanny, preschool, three nutritious meals a day, healthcare whenever needed, books, computer, private school, and exposure to a range of social experience?

One reason our children are gifted is because my family is able to provide them the safety, attention, care, and resources even before they were born. They have college funds since birth; parents, caregivers, and educators who create a learning environment and maximize their development; access to experiences; etc. I'm not saying that attitude has nothing to do with success, but let's not fool ourselves in thinking that its as simple as using attitude to overcome disadvantages that persist from birth.

[Nick Fortune]

12:48 PM on 02/25/2012

The issue is about Affirmative Action, is it not? Your argument does not apply solely or exclusivley to African Americans, there are likely more whites (or just as many) with single parent households having the same struggles.

Its more of an economic and cultural problem than it is racial. While the liberal agenda tends to divide families, creating the very conditions you describe. Conservatives believe in the traditional two parent household which has been tried and proven through out the ages prior to the 60's and 70's Hippy (liberal) rebellion.

[aresponse2dotcom]

11:56 PM on 02/26/2012

Cynth, I really appreciate the lesson in how to change things for the underprivileged. The underpinning of my statement that you reacted to is this: Anger toward the white people is not going to cure the situation; the children we are talking about do need to be encouraged and given hope; making people believe they are owed something does not help them achieve anything. In your approach I didn’t notice one constructive solution to the situation facing thousands upon thousands in every major city in our country. (remainder of comment below)

[Cynth]

11:31 PM on 02/23/2012

And AA does not involve "getting a first prize trophy when you place last." It's about advancing the underrepresented from a pool of equally qualified candidates. Unqualified candidates need not apply.

[Nick Fortune]

01:43 PM on 02/24/2012

"underrepresented" Guaranty Equal outcome not equal opportunity; right? High in your ivory tower looking down upon the rest of us, people like you will make these decisions.

[WHEELS221]

04:39 PM on 02/23/2012

5 of the 9 justics do not care enough of this Country to put their political affiliations behind them when making their decisions. They are BOUGHT AND PAID FOR REPUBLICANS

[Jeramie Shebester]

09:50 AM on 02/25/2012

And the other four call it right down the middle?!? Nonsense.

[DenverRight]

12:58 PM on 02/27/2012

It's actually only four - Kennedy swings both ways.

But you forgot the liberal wing. They are AT LEAST as predictable in their votes as the conservative bloc.

I guess that in your world "bought and paid for" only happens on the conservative side?!

[WHEELS221]

03:00 PM on 02/27/2012

Not at all..Dems are bought as well. I don't think the US SURPRME COURT should get involved in politics as they do..