supreme court and civil rights: affirmative action

introduction

• Since the end of the Civil War in 1885, many methods have been used to bring about practical equality for racial minorities in the USA.

why affirmative action

• Ongoing argument between 'equality of opportunity' and 'equality of results'.

  • Agreement by civil rights advocates that minority rights and representation could not be guaranteed by 'giving' rights to the people (equality of opportunity)

    • This only gave the theory of rights – they had to work towards equality of results.

    • The only way to overcome racial disadvantage was to introduce racial advantage through policies such as busing, quotas and affirmative action.

KEYWORDS

Busing – The mandated movement of school children between racially homogeneous neighbourhoods to create racially mixed schools

Quotas – A programme whereby a certain percentage of places in e.g. higher education or employment is reserved for people from previously disadvantaged minorities.

Affirmative Action - A programme giving members of a previously disadvantaged minority group a head start in e.g. higher education or employment.

crux of the divide

Supreme Court & affirmative action

• Gratz v Bollinger (2003): Ruling 6-3

  • University of Michigan's affirmative action-based admissions programme was unconsititutional because it was too mechanistic.

    • All black, Hispanic & American-Indian applicants were automatically given 20/150pts towards admission.

• Grutter v Bollinger (2003): Ruling 5-4

  • University Law School's admissions programme was consitutional because it used a more 'individualised approach' in considering the racial profile of its students.

• Net effect: universities can continue to use affirmative action providing they carefully looks at each applicant's ability on an individual basis.

  • Court has also said that universities should prepare for a time when these programmes are no longer necessary.

  • Rulings have suggested this timeframe maybe within 25 years or so.

• Parents Involved in Community Schools Inc v Seattle School District & Meredith v Jefferson County (Kentucky) Board of Education.

  • Court declared it unconsitutional to assign students to public schools purely to achieve racial balance.

    • Both schools centred upon racial quotas of white and minority representation in school which wouldn't be achieved otherwise due to racially segregated housing.

• Both rulings were 5-4

  • Both sides of the court saw themselves as protecting the equal protection rights announced in 1954 Brown ruling

    • Chief Justice Roberts and his colleagues expressed concern in both cases that the racial quotas violented the equal protection clause of the Fourteenth Amendment.

      • "Simply because the school districts may seek a worthy goal does not mean that they are free to discriminate on the basis of race to achieve it" (Roberts)

      • Justice Clarence Thomas suggested that the dissenting majority would ideally "constitutionalise today's faddish social theories.... if history has taught us anything, it has taught us to beware of elites bearing racial theories."

case of Abigail Fisher

• Abigail Fisher – young white woman from Texas.

  • Applied to University of Texas but was rejected.

  • Filed a lawsuit saying she had been a victim of racial discrimination.

    • She claimed that minority race students with less impressive qualifications than hers had been accepted.

• Fisher v University of Texas (2013)

  • Ruled the University of Texas' use of race in its admission policy must be subjected to stricter scruitiny because it possibly involved racial discrimination.

    • This meant the Federal Appeals Court was reinstructed to hear the case using the stricter scrutiny.

  • In 2014 the Federal Appeals Court heard the case again.

    • They again found in favour of the University of Texas.

• Fisher then appealed to the Supreme Court again...

• Fisher v University of Texas (2016)

  • Expected that the Court would go against the Federal Appeals Court ruling and strike a massive blow to the affirmative action programme.

  • It didn't! In a 4-3 ruling they upheld the Federal Appeals Court ruling in favour of University of Texas.

    • Ruling was 4-3 due to Justice Kagan's prior involvement and Justice Scalia's seat remaining vacant.

      • Justice Kennedy: '...But it still remains an enduring challenge to our Nation's education system to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity."

      • Justice Alito: '...affirmative action gone berserk based on offensive and unsupported stereotypes...'

• Reaction was varied.

  • Obama led praise of the ruling: '[the Court had] upheld the basic notion that diversity is an important value in our society and that this country should provide a high-quality education for all our young people regardless of their background'

    • Something Ms Fisher would agree with – and thus sums up the conundrum that ending racial discrimination is brought about by what some see as racial discrimination.

has affirmative action been successful?

• How do you measure success?

  • Justice Harry Blackmun (1978) suggested legitimacy of such programmes was to be measured by how fast they moved society to a time when they were no longer needed and race no longer mattered.

  • Justice Sandra O'Connor (2003) said there was a 25 year limit on affirmative action programmes in her judgement on the Grutter case.

• Some believe it will fail because a programme designed to move society to a point where race no longer matters, is based on race – so the issue always remains.

• Others believe it is succeeding because of Obama's election being a '...stunning triumph for the notion of colour-blindness...' And that '…[Americans] are willing to do what Martin Luther King envisioned: vote for a president based on the content of his character rather than the colour of his skin.'

• The question is should we overlook these programmes because of the good they do? Supreme Court says no. 'In the distribution of benefits under the laws, all racial classifications are invidious.'

public opinion on affirmative action

• Difficult to assess public opinion because it depends on the question

  • To overcome past discrimination do you favour or oppose affirmative action programmes? 63% said they favour, 29% opposed.

  • Do you think affirmative action programmes designed to increase the number of black and minority students on college campuses are a good or bad thing? 60% said good and 30% said bad.

• Key is in wording.

  • When asked latter question again but instead of using words 'good/bad' they were replaced by 'fair/unfair' 47% said fair but 42% said unfair.

  • 'A good thing' they may be, but that doesn't stop them from being viewed as 'unfair'.

• If idea of group getting 'preferential treatment' suggested then figures change again.

  • Do you think that we should make every possible effort to improve the position of blacks and other minorities, even if it means giving them preferential treatment? 24% agreed but 72% disagreed!

• However surprising figures are when asking about impact of affirmative action.

  • White population: 2% 'helped', 13% 'hurt' and 84% 'unaffected'

  • African-Americans: 4% 'helped', 8% 'hurt' and 87% 'unaffected'

What should we do about affirmative action?

• Four alternatives

  • Abolish, phase out, reform or keep them as they are.

• Conservatives (mostly in the Republican Party) favour abolition.

  • Society is not about equality but equality of opportunity.

  • An unequal society has the benefit of providing the incentive to better oneself therefore quotas are a disincentive to hard work.

  • Minorities from places such as SE Asia haven't needed affirmative action programmes to succeed.

  • Inequality today is rooted in lifestyle choices e.g. drugs, alcohol and parenting.

  • In addition, affirmative action is based on a false premise - Chief Justice Roberts put it in 2007 'the way to stop discrimination on the basis of race is to stop discrimination on the basis of race.'

• A more moderate view would agree with some of the above but would be impressed with the achievements of the programmes.

  • Agreement with Justice Sandra O'Connor – if affirmative action has achieved all the supporters claim then there must come a time when they are no longer necessary.

  • '...We expect that 25 years from now, the use of racial preferences will no longer be necessary.'

  • In other words phase it out.

• Third argument is expressed by President Clinton's phrase - 'mend it, don't end it'

  • In other words these programmes need tweaking as their effect is more widely felt.

• Liberals (found mostly in Democrats) favour continuation of policies + that programmes have much to do.

  • African-Americans and Hispanics are still under represetnted in terms of batchelor degree awards at American universities

  • The vision of an equal society is still a vision of the future.

Has affirmative action been good for America?

YES

• It has helped reverse decades of discrimination and righted numerous wrongs.

• It has given the black American community hope, education, jobs and housing.

• There is increasing evidence of minority students at top universities.

• It has helped to promote community diversity.

• It has helped promote equality of opportunity and equality of outcome.

NO

• It has divided the black community rather than empowered it.

• Like the racism it sought to end, it is itself a programme based on race.

• It has led to some resentments and inequalities for the majority community.

• It lowers aspirations by offering racial preferences.

• It puts minority students into academic places where they then struggle to compete and succeed.