Affirmative Action Teach Us Session

desegregation & nondiscriminationYESTERDAY AND TODAY

Matthew Cartwright & Kira Gatewood3.14.13

“We all should know that diversity makes for a rich tapestry, and we must understand that all the threads of the tapestry are equal in value

no matter what their color.”

Desegregation & Affirmative Action Overview

Higher Education Application

Theory to Practice: Fisher v University of Texas – Austin

The Great Debate & Final Thoughts

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today

desegregation & affirmative action

•Separate but equal deemed constitutional

“I am bewildered to compare the singular voice with which the Brown court spoke with the racial diversity with which our nation continues to grapple…I have reached the lamentable conclusion that in fifty years, we as a society, have made very little progress in achieving Brown’s promise of meaningful educational integration.” –Boyce F. Martin, former Chief Judge U.S. Court of Appeals, Sixth Circuit

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Summary

Dred Scott v. Sanford (1857)

• Slaves are not citizens of the U.S.

• Missouri Compromise is unconstitutional

Roberts v. City of Boston(1849)

• Local Legislation governs education policy.• Separate but equal indoctrinated.

Plessy v. Ferguson(1896)

•Equality defined as a colorless judicial system.

Brown v. Board of Ed.

(1954)

•Equality definition challenged.• Segregation is rooted in discrimination.

Adams v. Richardson(1973)

• Civil Rights Act (1964) enforcement questioned.•HEW ordered to restrict federal funds to compliant institutions of learning.

higher education application

Is explicit race classification and spaces specifically for minorities lawful under the Fourteenth Amendment?

Berkley’s medical school admissions unlawful in part, lawful in part• Quotas unconstitutional; race can be one (plus) factor of many• Diverse student body constitutional• White applicant must be admitted if school cannot prove would

have been rejected regardless of special admissions• Individualized consideration requires race be used in flexible,

nonmechanical way (precedent)

Hopwood v. Texas (1996) first case to disregard ruling; diversity not sufficient justification to use race

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quotas unlawful, race only one factor

Regents of UCal v. Bakke 438 U.S. 265 - Supreme Court (1978) 2003

Is race as a factor in student admissions by the University of Michigan Law School (Law School) unlawful?

Court upheld Court of Appeals decision, determining Law School’s admissions policy (achieving critical mass) constitutional• Narrowly tailored (not quota driven and race is a `plus‘ factor)• Considered many race-neutral criteria• Furthered educational benefits delivered from diverse

student body

Race-conscious admissions must have an end point and limited in time

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race-conscious admissions lawfulGrutter v. Bollinger et al. 539 US 306 - Supreme Court 2003

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race-conscious admissions unlawfulGratz et al. v. Bollinger et al. 539 U.S. 244 – Supreme Court 2003

Is the utilization of a point system that awards “underrepresented minorities” extra points constitutional?

Court previously ruled use of Affirmative Action in admission decisions are constitutional if race one factor of many• Purpose must be to achieve a diverse class• Does not substitute for individualized review of applicant

Supreme Court rejected use of point-system admission plans.• Race conscious formula ≠ Individual Contribution Review• A predetermined formula for admission is unconstitutional• Racial diversity important but should not be sole factor in admission

Grutter v Bollinger set precedent for public universities, permitting use of race in admissions considerations• Must be part of holistic review• Cannot be used to meet quotas

Private universities operate outside of mandate• Able to determine selectivity• Create recruitment/admissions strategies that assist in creating

representative cohort (e.g., Northwestern)

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currently, race a consideration in admissions

theory to practice: fisher v UT

Does a public university violate the Equal Protection Clause of the Fourteenth Amendment when it considers race in admissions decisions?

Since Hopwood v Texas overruled by Supreme Court decision in Grutter, UT began considering race in admissions

Court of Appeals affirmed lower court’s ruling that UT passed strict scrutiny and admissions practices narrowly tailored

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UT’s admissions policy constitutionalFisher v UT Austin 631 F. 3d 213 - Court of Appeals, 5th Circuit 2011

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OVERVIEW: Fisher v UT

the great debate

Applicants divided into three groups: resident, non-resident domestic, international

90% of seats available to Texas residents• Students falling within top 10% of graduating class

automatically admitted (Texas education code)• Remaining spaces use academic index (GPA, test scores) and

personal achievement indices (essay, holistic score, inclusive of race)

Diversity part of educational mission; UT seeks critical mass

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UT admissions policy

Given precedents set and Supreme Court’s statement that in 25 years Affirmative Action would no longer be needed, how do you anticipate court to rule on the case?

As administrators, what argument would you make, using precedents, to support that your admissions practices were valuable and justified?

Do you think UT’s questioned admissions policy should be amended based on court precedence or the concept of narrow tailoring?

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what would you do?

final thoughts

UT’s critical mass is a quota in disguise, especially when referencing Texas population percentages

University has not sufficiently utilized/considered race-neutral approaches (e.g., top 10%)

Top 10% rule already achieves a critical mass

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what UT’s opponents are saying

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what UT is sayingAdmissions policy is narrowly tailored and follows Grutter model

Race is plus-one in holistic review; Critical mass of minority students to represent Texas population

Diversity is the cornerstone of educational mission

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reflection

thanks