by Perry Johns

Though the United States has come a long way since legally segregating public school students on account of their race, the fact remains that discrimination based on race is still embedded in the American education system with the use of affirmative action programs. Affirmative action refers to the policy of considering race as a factor in hiring and school admissions in order to give minorities an advantage to counteract effects of historic discrimination. Affirmative action has been a fiercely debated topic in public discourse over the past few decades. Proponents of affirmative action programs argue that “race neutrality” (the idea that race should not be a factor, and every person is equal regardless of skin color) is not enough to compensate for past wrongs and that the white majority still has an inherent advantage in the United States. Opponents of affirmative action believe that preferential treatment of minorities is degrading to both minorities and the white population because “not only is individuality subordinated to group identification, but the concept of merit is supplanted by quotas.” Opponents argue that affirmative action programs go against the American ideal of equality before the law, and further, that the programs deepen racial divisions in American society.

Because the legality of affirmative action centers around the Equal Protection Clause of the 14th Amendment of the United States Constitution, the United States Supreme Court has heard several cases about the constitutionality of affirmative action programs. Beginning with the landmark 1978 case Regents of the University of California v. Bakke  and continuing to the present day, the Court has provided no clear answer regarding the legality of affirmative action. In fact, the ruling in Bakke clearly illustrates the Court’s ambiguous history with this subject; they ruled that the University of California’s policy did violate the Equal Protection Clause, but they also stated that it was acceptable to use race as a factor in admissions. In this case, there were four separate opinions and no majority opinion. Thus far, there have been no unanimous decisions in affirmative action cases, most are 5-4 votes, and many have plurality opinions. The Court has disagreed on many issues within the debate such as what standard of review should be used for affirmative action programs, how much deference to give to schools, what constitutes as a compelling interest, what type of admissions programs are acceptable, and the role of the Court in this controversy. As a result, they have offered conflicting precedent and vague guidance which sets a confusing standard for schools to attempt to follow. The Court clearly reflects how divisive the policy of affirmative action is in American society.

The most recent affirmative action case the Court heard was Fisher v. University of Texas (2016). The University of Texas at Austin uses the “Top Ten Percent Plan” (meaning the top 10% of Texas high school graduating classes are guaranteed admission to state universities) to fill 75% of its availability. The remaining 25% of spots are decided based on a “Personal Achievement Index,” where race factors into an applicant’s final score. Abigail Fisher was a non-minority student who was denied admission to the University of Texas at Austin. As a result, she brought a case to the Supreme Court claiming a violation of the Equal Protection Clause of the 14th amendment. There are actually two separate cases regarding this issue. In Fisher I (2013), the Court established that the admissions process has to pass strict scrutiny based on Bakke (1978), Gratz v. Bollinger (2003), and Grutter v. Bollinger (2003). Strict scrutiny required the University of Texas to prove that they had a compelling interest in using race as a factor for admissions and that their method is the most narrowly tailored plan to achieve this interest. The Court then remanded the case back to the Fifth Circuit Court of Appeals.

Fisher II (2016) decided the constitutional merits of the admissions program. In a 4-3 decision with Justice Kagan recusing herself, the Court ruled that the admissions program did not violate the 14th amendment. The Court said that the University’s stated goals – “ending stereotypes, promoting cross-racial understanding, preparing students for an increasingly diverse workforce and society, and cultivating leaders with legitimacy in the eyes of the citizenry” – qualified as a compelling interest, and their method was narrowly tailored enough to achieve it. The language in the majority opinion of this case was vague, meaning that the Court did  not offer clear legal guidance on affirmative action programs. Based on precedent from Bakke (1978), Gratz (2003), and Grutter (2003), schools are not allowed to use a quota in their admissions decisions, and the process must “remain flexible enough to ensure that each applicant is evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application” (Grutter 2003). Because the Court has banned quotas but still allows race to be used as a factor, the University of Texas has stated that they desire a “critical mass” of minority representation in order to avoid breaking the law by having a concrete numerical goal. This is an example of how the Court’s convoluted legal standard has made the admissions process confusing for everyone. What is the definition of a “critical mass”? How will anyone know when that has been achieved? Due to the Court’s lack of clarity, the University is able to hide behind this vague phrase, and no one can keep them accountable because there is no clear end goal. In his majority opinion for Fisher II (2016), Justice Kennedy states that “race is but a ‘factor of a factor of a factor’ in the holistic-review calculus” and that “consideration of race is contextual and does not operate as a mechanical plus factor for underrepresented minorities” in the University of Texas’s admission process. This language is extremely unclear and not helpful for establishing standards for affirmative action. Where does contextual consideration end?

Additionally, the Court instructed the University to “tailor its approach in light of changing circumstances, ensuring that race plays no greater role than is necessary to meet its compelling interest.” (Fisher 2016) The Court told the University that the school would have to continually reassess their admissions policy to ensure that it adjusts with the changing racial climate in American society. This is a subjective judgement that the University of Texas does not have the authority to make. If the Supreme Court sees that affirmative action programs will need to become stricter and more narrowly tailored in the coming years, then the Court ought to prohibit race from being used as a factor in admissions now. The Supreme Court has a unique responsibility to set the legal standard for the entire judicial system in the United States. Because of this responsibility, the Court must be explicit in its rulings on this subject. Based on the opinions that the Court has issued, it is clearly too complicated to establish a legal rule for affirmative action programs. For the sake of clarity, if not for upholding American ideals, the Court should simply disallow the use of race as a factor in admissions.

The Court might have the opportunity to act sooner rather than later. There is a case awaiting judgement at the US District Court where a group called Students for Fair Admissions has accused Harvard of discriminating against Asian-Americans in their admissions process. This case is interesting in that it deals with a minority group being discriminated against, rather than the white majority. However, it brings forward the same questions as any other affirmative action case: is there ever a compelling reason to discriminate against a particular race of people? If so, what is that reason? At what point does the admissions process become mechanical rather than holistic? Is there a way to truly justify judging an applicant “by the color of their skin rather than by the content of their character?” This case will likely be ruled on in early 2019, but both sides have stated that they plan to appeal. Therefore, it is possible that it could be heard before the Supreme Court in coming years. With this upcoming case, the Court has the opportunity to finally offer a clear legal precedent regarding affirmative action by definitively ending racial discrimination in the education system, thus upholding the values of the United States and words of the Constitution.