Many of the facts surrounding the recent challenges to affirmative action are not well known to the general public. A “perfect storm” has brought into question the survival of even modest, race-sensitive, non-preferential admissions programs designed to enhance campus diversity in higher education. This storm has arisen from three major sources. First, the term “affirmative action” has caused a backlash in (especially white) public opinion against programs believed to unfairly disadvantage white Americans. Second, wealthy white entrepreneurs have recruited plaintiffs and actively sponsored legal challenges to both civil rights and affirmative action programs. And third, a conservative Supreme Court has decided to hear these cases, resulting in the elimination, revision, or curtailment of existing civil rights laws and race-sensitive admissions programs. Critics indicate that the determinations of Chief Justice John Roberts’ conservative high court reflect a post-racial, color-blind perspective that contradict the continuing presence of race-based inequality in the United States. Roberts’ view is summed up in the 2007 Parents Involved v. Seattle School District; Jefferson County Board of Education (127 S. Ct. 2738): “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
As Alvin Evans and I share in our new book, Affirmative Action at a Crossroads: Fisher and Forward, deep ironies and contradictions characterize the Supreme Court’s determinations in the civil rights arena and in the four major affirmative action-related lawsuits over the past thirty-five years. The Court has constricted and even reversed civil rights law on the premise that social conditions of inequality in America have, for the most part, been addressed with the conclusion that policies designed to level the higher educational playing field are both unfair and unnecessary.
Reinterpretation of the Equal Protection Clause of the Fourteenth Amendment (1868) is at the center of the high court’s determinations, moving from the original intent of the clause to protect the rights of minorities to an emphasis on the protection of all groups, including white Americans. For example, in the Fisher case, Justice Antonio Scalia voiced his incredulity over the argument that the Fourteenth Amendment protects minorities:
My goodness, I thought we’ve–we’ve held that the 14th Amendment protects all races. I mean, that was the argument in the early years, that it protected only — only the blacks. But I thought we rejected that. You–you say now that we have to proceed as though its purpose is not to protect whites, only to protect minorities?”
Legal scholar Derrick Bell’s theory of interest convergence explains how affirmative action arose during the civil rights era as a response to the radical protests and converged with other interests that were differently motivated. The creation of contemporary affirmative action programs by President John F. Kennedy and his successor, President Lyndon B. Johnson in the midst of periods of extreme racial turbulence coincides with the development of race-conscious admissions policies by leading universities.
Ironically, the frontal attack on affirmative action in university admissions practices leading to an overall shift in public policy at the nation’s leading universities has been led by a single individual, Edward Blum. Blum’s one-person organization, the Project on Fair Representation, was founded in 2005 to challenge the Voting Rights Act (VRA). This effort paved the way for the Supreme Court’s Shelby County v. Holder decision nullifying the requirement for nine states and some counties to obtain preclearance from the Department of Justice prior to changing voting requirements. A conservative entrepreneur without a law degree or scholarly background, Blum has recruited a network of top lawyers who often agree to offer their services at reduced rates.
In launching a sustained, legal assault on affirmative action, Blum recruited Abigail Fisher, the daughter of an old friend, to contest her denial of admission to the University of Texas at Austin based on a claim of reverse discrimination. The Court’s ruling in the Fisher case established a much more stringent set of preconditions for consideration of race as one factor among many in a holistic admissions process. First, consideration of race and ethnicity as one factor among many in the individualized admissions review process cannot occur unless all race-neutral alternatives have been exhausted. Second, a reviewing court rather than the university becomes the arbiter of whether or not a university’s use of race is necessary to achieve the educational benefits of diversity. Writing for the majority, Justice Kennedy emphasized that in reviewing the means to attain diversity, “the university receives no deference.” Referring to the Court’s decision in the 2003 Grutter v. Bollinger case at the University of Michigan, Kennedy added:
Grutter made it clear that it is for the Courts, not for university administrators, “to determine that the means chosen to accomplish the government’s purpose are “specifically and narrowly framed to accomplish that purpose.”
The Project on Fair Representation has continued its effort to recruit plaintiffs and filed suit against Harvard University and the University of North Carolina at Chapel Hill. The Harvard lawsuit takes a different tack by splintering minority interests and building on the white-created “model minority” myth. It focuses on admissions policies limiting the enrollment of qualified Asian-American applicants and argues that Harvard has held Asian American students to higher standards than other applicants. The suit against the University of North Carolina at Chapel Hill challenges that flagship institution’s own description in a friend-of-the-court brief in the Fisher case in which the university wrote of its current process to attain a higher level of black enrollment. Blum also says that he hopes to find applicants rejected from the University of Wisconsin, the University of Minnesota, and the University of Tennessee for future suits.
Edward Blum’s most recent high-profile effort challenges the concept of one person one vote, that has led to the Supreme Court decision last week to hear Evenvel v. Abbott, a suit that contests the way state districts’ lines are drawn in Texas. The case calls into question the Court’s Reynolds v. Sims decision (1964) that draws district lines based on an areas’s total population. Instead, Blum advocates the drawing of district lines based only on eligible voters, thereby eliminating children, illegal immigrants, non-citizen, and inmates, among others.
Yet as colleges and universities grapple with the Supreme Court’s rigorous requirements surrounding race-sensitive admissions processes, one unforeseen benefit may be the attention that needs to be paid to clearly-articulated mission, vision and values statements. These statements now need to contextualize why diversity is a compelling interest for a given college or university campus. In sharing recommendations for practice at the conclusion of our book, we note the ongoing and unusual responsibility of educational institutions to ensure the talent of the nation’s minority students is not wasted, but realized. The rich research literature on the educational benefits of diversity that has arisen in specific response to the recent affirmative action cases will assist institutions in the ongoing and persistent effort to open the doors of educational opportunity to America’s diverse citizenry.