What is the Future of Affirmative Action? - American Society of Employers - Anthony Kaylin

What is the Future of Affirmative Action?

In Nov. 2014, the Students for Fair Admissions (SFFA) filed a complaint alleging that Harvard is “employing racially and ethnically discriminatory policies and procedures in administering the undergraduate admissions program.”  The complaint alleges that Harvard uses racial quota and balancing in its admission process, which in particular adversely impacts Asian American applicants.  The admission standard for Asians, SFFA argues, is a higher one than other groups.   The June 2017 case survived a motion to dismiss and is still pending.

This lawsuit appears to be a reframing of the Rehnquist dissent in the Grutter v. Bollinger case discussing the admission process in the University of Michigan’s law school:

“From 1995 through 2000, the Law School admitted between 1,130 and 1,310 students. Of those, between 13 and 19 were Native American, between 91 and 108 were African-Americans, and between 47 and 56 were Hispanic. If the Law School is admitting between 91 and 108 African-Americans in order to achieve “critical mass,” thereby preventing African-American students from feeling “isolated or like spokespersons for their race,” one would think that a number of the same order of magnitude would be necessary to accomplish the same purpose for Hispanics and Native Americans.”

According to Rehnquist, who reviewed the admission statistics for the years 1995 to 2000, approximately the same percentage of minorities by ethnicity were admitted year in and year out, which were approximately the same percentage of total applicants for each minority group. Chief Justice Rehnquist stated that the “critical mass” approach by the Law School looked very much like racial balancing and racial quotas as alleged by the SFFA.

The SFFA has also filed a lawsuit against the University of North Carolina for the same reasons.

Further, in May 2015, 64 different Asian American groups filed a complaint against Harvard with the U.S. Department of Education and Justice requesting their review of the admission process using the same basis of the complaint of racial quotas and balancing.

Now the Trump Administration is opening a new unit in the Department of Justice to specifically investigate and sue universities over affirmative action admissions policies they determine discriminate against white applicants.  This unit is currently advertising internally for lawyers to work on the project.  One of the first cases it may work on could be the Harvard case.

Last year, in the Fisher v. University of Texas II case, the Supreme Court ruled that strict scrutiny is the standard of review in that the University must show that its “purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is necessary to accomplish that purpose.”  In addition, the school bears the burden of demonstrating that “available” and “workable” “race-neutral alternatives” do not suffice whether the use of race is narrowly tailored to achieve the university’s permissible goals.  

However, the Supreme Court ruled that “the decision to pursue the educational benefits that flow from student body diversity is, in substantial measure, an academic judgment to which some, but not complete, judicial deference is proper.” Its primary goal is diversity in the student body.  Efforts for outreach apparently were not successful.  Yet, no study was made as to the success of the students admitted before and after the policy was instituted.  Harvard and North Carolina have statistics, and it may not bode well for the institutions.

It is likely that the Harvard case, assuming that the DOJ intervenes, could be before the Supreme Court in another year or two.  Affirmative action may be ended by the Court at that time, which would have significant bearing on government contracting throughout the U.S.  Kennedy is the swing vote.  He wrote the Fisher decisions, and he has staked a legacy, as muddy as his decisions have been, on affirmative action.  Until he retires, affirmative action will likely be more restrictive.  If he retires, affirmative action may long be dead. 


Source: New York Times 7/31/17; Washington Post 8/1/17; Harvard Crimson 11/7/16

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