Affirmative Action Isn’t Dead


Allen Smith, J.D. By Allen Smith, J.D. June 24, 2016

Concerns that the Supreme Court would find the use of affirmative action in higher education to be unconstitutional were put to rest June 23, as the court upheld the University of Texas' admissions factors, which included consideration of race in limited circumstances.

"For people in favor of doing things to achieve diversity, it was a very useful decision that what you have been doing, you can keep doing," said Jeffrey Robinson, an attorney with Lewis Baach in Washington, D.C.

Many employers care a lot about diversity and inclusion and were concerned when the Supreme Court agreed to review a challenge of the University of Texas' admissions program, said David Goldstein, an attorney with Littler in Minneapolis.

If affirmative action in higher education was struck down, as some were afraid it would be in the University of Texas case (Fisher v. University of Texas, No. 14-981), some feared it would be the first domino to fall, and that diversity programs among private employers and affirmative action among federal contractors might be next, according to Scott Schneider, an attorney with Fisher Phillips in New Orleans and Houston.

That said, affirmative action regulations for federal contractors are an area of the law that "is pretty well settled," said Donald Lawless, an attorney with Barnes & Thornburg in Grand Rapids, Mich.

Employers with diversity programs understand they can't take race or sex into account in recruiting, Goldstein said. They instead are engaged in outreach toward minorities and women, he noted.

However, more diverse college campuses can lead to a more diverse pool of job candidates, and employers will be glad that universities are allowed to continue to use affirmative action in their efforts to promote diversity, according to Goldstein.

Admissions Practices Under Fire

The method that the University of Texas used to promote diversity within its student body was limited, as is necessary to pass constitutional muster, according to the Supreme Court's decision.

In 2008, the University of Texas had a policy that said that 75 percent of the freshman class would be made up of students who were in the top 10 percent of their graduating high school class throughout the state. The remaining 25 percent of students in the freshman class were admitted through a holistic review based on other factors, including their leadership abilities, activities, work experience, community service, SAT score and race.

Abigail Fisher, a white student who was not in the top 10 percent of her graduating high school class, was denied admission in 2008 and then sued. She challenged the university's admissions policy as unconstitutionally relying on race. Defending its policy, the university noted that it tried for several years to not factor in race for the additional 25 percent of each incoming class, but the number of minorities admitted during that time did not rise.

The case reached the Supreme Court in 2013 (Fisher I), but the court sent the case back to the district court for a determination of whether the university had to consider race to meet its diversity objectives. The lower courts ruled that Texas had constitutionally considered race, and when the case reached the Supreme Court again, it affirmed in a decision written by Justice Anthony Kennedy (this case is sometimes referred to as Fisher II).

In Fisher II, the Supreme Court noted that Fisher I set out three controlling principles relevant to assessing the constitutionality of a public university's affirmative-action program:

  • Race may not be considered unless the admissions process can withstand strict scrutiny.

  • Courts will give some, but not complete, deference to the decision to pursue the educational benefits that flow from student body diversity.

  • A university bears the burden of proving that an approach that doesn't take race into consideration at all would fail to promote its interests in diversity, such as the need to prepare students for an increasingly diverse workforce and society.

Limited Promotion of Diversity

Before changing its policy to make race a limited factor in the admissions process, the university conducted months of study and concluded that the use of race-neutral policies had not been successful in achieving sufficient racial diversity, the Supreme Court noted in Fisher II.

Minority enrollment stagnated from 1996 to 2002. In 1996, 266 black students enrolled. In 2003, 267 black students enrolled. The numbers for Hispanic and Asian-American students also had stagnated.

Taking race into consideration helped improve the diversity of students at the university. In 2003, 11 percent of the Texas residents enrolled through the holistic review were Hispanic and 3.5 percent were black. In 2007, 16.9 percent of the Texas holistic-review freshmen were Hispanic and 6.8 percent were black—increases of 54 percent and 94 percent, respectively. These statistics show that consideration of race had a "meaningful, if still limited, effect on the diversity of the university's freshman class."

The university's limited use of race as a factor withstood the court's strict scrutiny analysis, partly because race was a "factor of a factor of a factor"—a limited consideration, in other words. In addition, the court noted, "Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission."

Doug Kauffman, an attorney with Balch & Bingham in Birmingham, Ala., recommended that employers undertaking diversity efforts:

  • Conduct self-analyses to determine if minorities are underrepresented.

  • Articulate what they are trying to remediate.

  • Select reasonable methods to remediate the problems.

Consideration of race should make people nervous and should be done sparingly, Goldstein said. At the same time, he noted that colleges and employers have a role to play in promoting a diverse society. ​


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