{"id":84,"date":"2017-01-31T16:33:37","date_gmt":"2017-01-31T21:33:37","guid":{"rendered":"https:\/\/www.nlg.org\/nlg-review\/?post_type=article&p=84"},"modified":"2017-01-31T16:33:37","modified_gmt":"2017-01-31T21:33:37","slug":"a-victory-for-education","status":"publish","type":"article","link":"https:\/\/www.nlg.org\/nlg-review\/article\/a-victory-for-education\/","title":{"rendered":"A Victory for Education"},"content":{"rendered":"

By Erwin Chemerinsky<\/a><\/strong><\/p>\n

The Supreme Court\u2019s decision in Fisher v. University of Texas<\/em> was a stun\u00adning victory for affirmative action and the ability of colleges and universities to pursue diversity in educating their students. In a 4\u20133 decision, with Justice Kennedy writing for the majority, the Court upheld a University of Texas plan that uses race as one among many factors in admissions decisions. The ruling means that colleges and universities can continue to use race conscious admissions programs to ensure a racially diverse student body.<\/p>\n

In 2003, in Grutter v. Bollinger<\/em>, the Supreme Court held that colleges and universities have a compelling interest in having a diverse student body and may use race as one consideration, among many, in admissions decisions.\u00a0 Justice Sandra Day O\u2019Connor wrote the opinion for the Court, joined by Justices Stevens, Souter, Ginsburg, and Breyer.<\/p>\n

In 2004, the Regents of the University of Texas, seeing a lack of diversity in their undergraduate population, adopted a new admissions policy. Pursuant to Texas state law, about 75 percent of each freshman class would be admitted by taking the top ten percent from every high school in the state.\u00a0 Because of racial segregation in Texas, this would produce some degree of diversity, but not enough to create a \u201ccritical mass\u201d of minority students essential for their success and for diversity.<\/p>\n

The University of Texas policy provided that about 25 percent of each class would be admitted based on an individualized review of applications.\u00a0 An admissions score was calculated for each student based on two numbers.\u00a0 One was an Academic Index, which was the student\u2019s grades and test scores.\u00a0 The other was a Personal Achievement Index which was calculated based on the assessment of two admissions essays and a consideration of seven fac\u00adtors, one of which was what the student would contribute to racial diversity.<\/p>\n

The new policy worked in enhancing diversity. There was a significant increase in applications from minority students and a 20 percent increase in African-American and a 15 percent increase in Latino students attending the University of Texas.<\/p>\n

Under Grutter v. Bollinger<\/em>, this is clearly constitutional; the University of Texas used race as one factor among many in its admissions decisions. The Texas program was upheld by the federal district court and the United States Court of Appeals for the Fifth Circuit. However, the Supreme Court, in a 7\u20131 decision in June 2013, remanded the case to the Fifth Circuit and held that Texas had to prove that there was no race neutral way to achieve diversity.\u00a0 Justice Kagan was recused from participating because she had been involved in the case as Solicitor General of the United States. The Court stressed that it was not sufficient for a college or university to have a compelling interest in diversity. The school had to show that there was no other means to yield a diverse student body.<\/p>\n

In 2014, the Fifth Circuit, in a 2\u20131 decision, again ruled in favor of the University of Texas, holding that it sufficiently demonstrated the need to use race as a factor in admission decisions to achieve diversity.\u00a0 And to the surprise of many, on Thursday, June 23, 2016, the Supreme Court, in a 4\u20133 decision, affirmed and upheld the University of Texas program. Justice Kennedy wrote the majority opinion, joined by Justices Ginsburg, Breyer, and Sotomayor.\u00a0 Justice Alito wrote a vehement 52 page dissent joined by Chief Justice Roberts.\u00a0 Justice Thomas wrote a separate dissent.\u00a0 The three dissenting justices left little doubt that they would vote to eliminate all af\u00adfirmative action.<\/p>\n

Anthony Kennedy came on to the Supreme Court in February 1988.\u00a0 From then until June 23, he never once voted to uphold an affirmative action program, not in education or contracting or employment.\u00a0 Yet, his majority opinion and his tone left no doubt that there is, at least for now, a majority to uphold affirmative action.<\/p>\n

To be sure, the Court reaffirmed that the burden is on the educational institution to prove the need for diversity and that there is no race neutral way to achieve diversity. The Court found that the University of Texas had met this burden. The Court said that a college or university does not need to quantify what is needed for a \u201ccritical mass of minority students\u201d and that Texas did not need to prove that the top 10 percent plan was insufficient to achieve diversity.<\/p>\n

Most important, the Court expressed the need for deference to educa\u00adtional institutions.\u00a0 The Court declared: \u201cConsiderable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission. . . . In strik\u00ading this sensitive balance, public universities, like the States themselves, can serve as \u2018laboratories for experimentation.\u201d<\/p>\n

Never before had Anthony Kennedy voted to uphold an affirmative ac\u00adtion plan.\u00a0 Never before had he written of the need to defer to educational institutions or to allow experimentation in terms of how to achieve diversity.<\/p>\n

Colleges and universities still must prove their need for diversity and for affirmative action. Also, the Court stressed a college or university that is engaged in affirmative action has a continuing obligation to reassess the admission program\u2019s constitutionality and effectiveness and must tailor its approach to ensure that race plays no greater role than is necessary to meet its compelling interests. But these, as the Court\u2019s decision indicates, are manageable burdens.<\/p>\n

The Court\u2019s decision in Fisher<\/em> is a huge victory for the education of all students.\u00a0 Diversity in the classroom is essential. I have been a professor for 30 years now and have taught constitutional law in classes that are almost all white and those that are racially diverse.\u00a0 It is different to talk about racial profiling by the police when there are African-American and Latino men in the room who can talk powerfully about their experience of being stopped for driving while black or driving while brown. Preparing students for the racially diverse world they will experience requires that they learn in racially diverse classrooms.<\/p>\n

Nor are there realistic alternatives for achieving diversity without affir\u00admative action.\u00a0 Because of historic and continuing inequalities in education, color blindedness in admissions would mean dramatic decreases in the number of African-American and Latino students in colleges and universi\u00adties across the country.\u00a0 Giving preferences based on social class fails to achieve racial diversity because there are many more poor whites than poor African-Americans and Latinos, even if the percentage in poverty in the latter groups is larger.<\/p>\n

Fisher <\/em>means colleges and universities can continue to engage in affirma\u00adtive action.\u00a0 By its terms, it is about equal protection under the Fourteenth Amendment and is limited to public colleges and universities. But the Su\u00adpreme Court has said that the standards are the same under Title VI of the Civil Rights Act of 1964 which prohibits recipients of federal funds from discriminating based on race.\u00a0 Thus, in practical effect, it applies to all col\u00adleges and universities in the United States.\u00a0 Fisher<\/em> is thus truly a huge victory for the education of all of our students.<\/p>\n

____________________<\/p>\n

<\/a>Erwin Chemerinsky<\/strong> is Dean and Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law.<\/p>\n","protected":false},"excerpt":{"rendered":"

By Erwin Chemerinsky The Supreme Court\u2019s decision in Fisher v. University of Texas was a stun\u00adning victory for affirmative action and the ability of colleges and universities to pursue diversity in educating their students. In a 4\u20133 decision, with Justice Kennedy writing for the majority, the Court upheld a University of Texas plan that uses […]<\/p>\n","protected":false},"author":32,"featured_media":0,"menu_order":114,"comment_status":"open","ping_status":"open","template":"","format":"standard","meta":{"_kad_blocks_custom_css":"","_kad_blocks_head_custom_js":"","_kad_blocks_body_custom_js":"","_kad_blocks_footer_custom_js":"","footnotes":"","_members_access_role":[],"_members_access_error":""},"categories":[],"tags":[],"issuem_issue":[38],"class_list":["post-84","article","type-article","status-publish","format-standard","hentry","issuem_issue-nlg-review-vol-73-no-3","post"],"aioseo_notices":[],"aioseo_head":"\n\t\t\n\t\n\t\n\t\n\t\n\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t