High Court Puts Affirmative Action under the Microscope

Liberals would have you believe that so-called affirmative action in higher education was settled back in 2003, when the U.S. Supreme Court ruled that race-based admissions policies at the University of Michigan School of Law were, more or less, constitutional.

But not so fast. The issue is once again before the High Court, giving justices another opportunity to clarify their position on the matter.

This case was brought by Abigail Noel Fisher, who claims that race-based admission policies of the University of Texas at Austin violate the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. Ms. Fisher was denied admission to the university in 2008.

The Supreme Court held oral arguments on October 10, 2012. The court is expected to issue a decision before the term ends in June 2013.

As reported by The New York Times: “The Supreme Court on Wednesday [October 10] heard arguments in a major affirmative action case, with the justices debating the nature and value of diversity in higher education and the role of the courts in policing how much weight admissions officers may assign to race.”

“The questioning was exceptionally sharp,” continued the Times, noting that Justice Kennedy, deemed the “swing vote” in this case, appeared “uncomfortable” with some aspects of the school’s affirmative action policy. (One of our excellent attorneys, Julie Axelrod, attended last week’s Supreme Court argument for Judicial Watch.)

Now, again, I caution against reading the tea leaves with respect to how the court might rule, especially after so many, including yours truly, guessed wrong about Obamacare. All eyes were on Justice Kennedy. Few suspected it would be Chief Justice Roberts who would join with the liberal minority and bless the president’s unconstitutional takeover of the health care system. But that’s what happened. 

The difficulties of forecasting the court’s decisions notwithstanding, I did find very interesting one exchange in the hearing’s transcript: Chief Justice Roberts appears to share Judicial Watch’s concerns about “self-identification” as the sole means of determining who is and who is not a minority as far as the admissions process is concerned. Here’s the relevant excerpt from the transcript:

CHIEF JUSTICE ROBERTS: Counsel…I need to figure out exactly what these numbers mean. Should someone who is one-quarter Hispanic check the Hispanic box or some different box?

MR. GARRE: Your Honor, there is a multiracial box. Students check boxes based on their own determination. This is true under the Common Application.

CHIEF JUSTICE ROBERTS: Well, I suppose a person who is one-quarter percent Hispanic, his own determination, would [say] I'm one-quarter percent Hispanic.

MR. GARRE: Then they would check that box, Your Honor, as is true…

CHIEF JUSTICE ROBERTS: They would check that box. What about one-eighth?

MR. GARRE: …they would make that self-determination, Your Honor. If anyone, in any part of the application, violated some honor code then that could come out…

CHIEF JUSTICE ROBERTS: Would it violate the honor code for someone who is one-eighth Hispanic and says, I identify as Hispanic, to check the Hispanic box?

MR. GARRE: …I don't think it would, Your Honor…

CHIEF JUSTICE ROBERTS: You don't check in any way the racial identification?

MR. GARRE: We do not, Your Honor, and no college in America, the Ivy Leagues, the Little Ivy Leagues, that I'm aware of.

CHIEF JUSTICE ROBERTS: So how do you know you have 15 percent African American -- Hispanic or 15 percent minority?

MR. GARRE: Your Honor, the same way that that determination is made in any other situation I'm aware of where race is taken into account.

CHIEF JUSTICE ROBERTS: You say the same way. What is that way?

MR. GARRE: The persons self-identify on that form.

As I say, Judicial Watch made much the same argument in its amicus curiae brief filed on May 29, 2012. We used the controversy surrounding Massachusetts Senate candidate Elizabeth Warren, and her controversial claim that she is part Native American, to illustrate the point:

Based on nothing more than “family lore” and “high cheek bones,” Ms. Warren claimed, perhaps quite sincerely, that she was 1/32nd Cherokee and, therefore, a Native American and a minority.

Under the University’s policy, an applicant who similarly identified herself as an “American Indian” based on “family lore” and “high cheekbones” would gain a “plus” factor toward admission…Imagine a freshman class at the University comprised of 6,715 Elizabeth Warrens, all identical but for the difference in the race or ethnicity of a single great great-great grandparent. How much additional diversity would the University have achieved by taking the race and ethnicity of these students into account in the admissions process?

But our argument goes much further than the ambiguous nature of the self-identification process. We also take issue with the nature of racial categorization itself, which has no scientific validity and largely is a “meaningless” standard of classification:

Human race and ethnicity are inherent ambiguous social constructs that have no validity in science. Invoking race and ethnicity to promote diversity relies on racial and ethnic stereotyping of individuals’ viewpoints, backgrounds, and experiences. Admission policies, such as the policy enacted by the University, which seek to classify applicants by crude, inherently ambiguous, and unsound racial and ethnic categories to promote diversity, but which instead promote racial and ethnic stereotyping, can never be narrowly tailored to promote a compelling government interest, and therefore cannot survive strict scrutiny.

Judicial Watch further noted the university policy “lumps together” two of the most populous countries in the world, China and India, each with over 1 billion people, a variety of languages, cultures and religions, under one race category, “Asian.”

“The term ‘Asian’ as anything other than a geographic reference is largely meaningless,” Judicial Watch argues.

Judicial Watch concludes: “To fulfill the promise of the Equal Protection Clause, the Court should find that race and ethnicity can never be narrowly tailored to promote diversity in admissions policies and therefore cannot survive strict scrutiny,” as the law requires.

Since 2005, the University of Texas at Austin has used race in its admissions process, purportedly to achieve greater diversity in its student body. Applicants to the university are currently required to complete and submit a standardized “Apply Texas” application, which requires applicants to identify themselves by race and denote whether they are of “Hispanic or Latino” ethnicity.

Ironically, the liberal racial bean-counters who defend affirmative action assume retrograde and quite illiberal views on race. We principled conservatives and honest liberals who would end this racial-spoils system that is affirmative action are, frankly, the “progressives” on matters of race.

The admissions policies of the University of Texas at Austin are at odds with the Constitution and promote racial theories that have no basis in science.  It’s time for the Supreme Court to put an end to this unlawful practice.


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