by William Kidder, the Assistant Provost at UC Riverside. Mr. Kidder’s post represents his personal views and not necessarily those of the UC administration. Mr. Kidder has a book review of Mismatch forthcoming in the Texas Law Review and a policy brief on the impact of Michigan’s Proposal forthcoming through the UCLA Civil Rights Project. His article on California’s Proposition 209 was published last spring in the Journal of College and University Law.
In discussing scientific evidence, Justice Breyer articulated a bare minimum standard that judges need to meet in order to protect the public interest and parties to litigation: “Consider the remark made by physicist Wolfgang Pauli. After a colleague asked whether a certain scientific paper was wrong, Pauli replied, ‘That paper isn’t even good enough to be wrong.’ Our objective is to avoid legal decisions that reflect that paper’s so-called science. The law must seek decisions that fall within the boundaries of scientifically sound knowledge.”
Regrettably, in last week’s oral argument in Schuette v. Coalition to Defend Affirmative Action, there were times where Michigan’s solicitor general John Bursch advanced arguments about higher education that aren’t “even good enough to be wrong” and that, if accepted, would leave the Court in a wilderness outside of the boundaries of sound statistics and social science knowledge.
In response to Justice Sotomayor’s question about the impact of California’s affirmative action ban, Bursch claimed, “The statistics in California across the 17 campuses in the University of California system show that today the underrepresented minority percentage is better on 16 out of those 17 campuses. It’s not at Berkeley; they haven’t gotten there yet; but its better on the rest.” There are only ten UC campuses, not seventeen. Of these campuses nine UC campuses (and eight with undergraduates) permit a comparison of pre- and post-affirmative action periods.
In contextualizing Bursch’s claims, it is also helpful to address African Americans, American Indians and Latinos separately. Most directly responsive to Bursch’s dubious claim are total enrollment figures (though that means combining undergraduate, graduate and professional school students). Compared to a baseline of 1996 (before California’s affirmative action took effect), the percentage of African Americans in 2012 is lower on a majority of UC campuses: Berkeley, Davis, Los Angeles, San Diego and San Francisco. The negative impact of prohibiting affirmative action is greatest at the most selective campuses that disproportionately train future leaders. At UC Berkeley African Americans were 5.1 percent of students in 1996 and only 3.3 percent in 2012, fifteen years after the campus implemented myriad rigorous race-neutral efforts to improve diversity. At UCLA African Americans were 5.8 percent of total enrollment in 1996, and 3.9 percent in 2012.
Many reasonable accounts from high court correspondents suggest the U.S. Supreme Court appears likely to uphold a Michigan constitutional amendment banning the use of race-conscious admissions policies at public universities.
On Tuesday, with hundreds of protestors gathered outside the courtroom, oral arguments in Schuette v. Coalition to Defend Affirmative Action were presented to eight justices of the high court, with Justice Elena Kagan recusing herself. The constitutional amendment at issue, passed via state referendum in 2006, faces a challenge from a coalition of affirmative action advocates that claims the amendment violates the Equal Protection Clause by placing an undue burden on minority populations. In part, the Coalition says that legacy students could lobby university officials for preference in the admissions process, while minority students must win a statewide repeal of the amendment before taking similar action.
In general, the Supreme Court’s conservative justices did not appear ready to support the Coalition’s arguments. For example, in response to civil rights attorney Mark Rosenbaum, arguing on behalf of the Coalition, Reuters reports that Chief Justice John Roberts “leaned forward from his center chair on the mahogany bench and said curtly: ‘You could say that the whole point of…the Equal Protection Clause is to take race off the table.’” He went on to ask if it was “unreasonable for the state to say, ‘Look, race is a lightning rod…We want to take race off the table and try to achieve diversity without racial preferences’?”
For his part, Justice Anthony Kennedy was restrained in his questioning, appearing to seek a narrow justification for upholding the Michigan amendment while leaving in place important precedent. After all, rulings in 1969 and 1982 in cases from Akron and Seattle – in which the Court struck down voter measures that removed anti-discrimination laws in education and housing – complicate any path to upholding the amendment. Michigan Solicitor General John Bursch suggested a possible distinction: earlier cases involved anti-discrimination laws, while the amendment at hand only demands equal treatment. “This was a broad-based law that was primarily motivated by the people of Michigan’s decision to move past the day when we are always focused on race,” Bursch explained.
by Deirdre M. Bowen, Associate Professor of Law, Seattle University School of Law
The long awaited affirmative action case, Fisher v. University of Texas at Austin, came down with more of a whimper than the expected wail. While much is being made of the limited nature of the decision, the legal battle over affirmative action is far from over. Indeed, the opinion suggests more of a long-path towards the demise of affirmative action through its shifting language and unclear standards. And in creating more questions than it answers concerning how to prove the validity of an affirmative action program, and thus leaving more lines open for its attack, the opinion takes the focus away from the need to design programs which ensure that all students benefit from diversity.
Indeed, Fisher appears to invite further attack of affirmative action. The Court makes abundantly clear that it takes no position concerning the continued validity of Grutter v. Bollinger, in which the Supreme Court upheld the use of affirmative action in higher education to achieve diversity and the benefits that flow from it. In other words, it remains an open question how long a university’s educational mission that includes creating a racially diverse campus will continue to pass constitutional muster. Instead, the Court in Fisher focuses on how the strict scrutiny standard, which is used in equal protection cases, should be applied in affirmative action cases involving higher education. And, even more narrowly, Justice Kennedy uses the Fisher opinion to clarify how that analysis should work when evaluating a university’s chosen method of implementing its diversity mission.
The U.S. Supreme Court may rule soon on the constitutionality of a race-conscious admissions policy employed by the University of Texas at Austin, but as the AP’s Mark Sherman reports that justices are ready to consider another case involving a race-conscious admissions – this time a state ban on the use of such policies.
The justices have already heard oral argument in Fisher v. University of Texas at Austin, regarding a white woman’s challenge to the university’s admissions policy, which takes an array of factors, including race, into account when building its student body. SCOTUSblog’s Lyle Denniston notes that while the justices in Fisher could potentially produce a broad ruling, they could as easily craft a narrow one that may “not go much beyond that plan.”
The Michigan case, Schuette v. Michigan Coalition to Defend Affirmative Action, however could prove to be a platform for a more sweeping announcement on race-conscious admissions policies. Denniston writes that the Michigan case “involves a move by a state to deny its public colleges and universities any right to use race as a factor in choosing the incoming class of students. It thus has the potential to produce a far more sweeping decision.”
As Sherman notes, the Michigan movement to pass a law outlawing race-conscious admissions policy “has its roots” in the high court’s 2003 opinion in Grutter v. Bollinger. In Grutter, a majority of the Court led by Justice Sandra Day O’Connor upheld the University of Michigan law school’s race-conscious admissions policy. The majority concluded that the school’s use of race it its admission policy supported a compelling educational interest and did not violate the Constitution’s Equal Protection Clause.
After the Grutter opinion, opponents of race-conscious admissions policies formed to advocate for a ballot initiative, Proposal 2, banning the state’s universities and colleges from using such policies. After voters approved the initiative, a group of civil liberties groups, including the NAACP LDF, formed to lodge a lawsuit against Proposal 2. Eventually the U.S. Court of Appeals for the Sixth Circuit ruled against Proposal 2, saying it subverted equal protection rights.
LDF’s President and Director-Counsel Sherrilyn Ifill said today that Michigan’s Proposal 2 “unconstitutionally gerrymanders Michigan’s political process and relegates the critical topics of racial diversity and access to educational opportunity to a separate, distant, and far more cumbersome playing field – one that is unplayable for all practicable purposes.”
LDF notes Proposal 2 has already led to a decline of minority enrollment, citing a University of Michigan study that shows African-American “undergraduate enrollment fell from 6.7 percent in 2006 to 4.5 percent in 2010.”
by Harold Kwalwasser, the former General Counsel of the Los Angeles Unified School District. He currently writes and consults on education policy from Washington, DC.
I wrote my new book on education reform, Renewal, Remaking America’s Schools for the 21st Century, to address two concerns. One was that the legislative solutions being proposed when I decided to write the book (back in 2009), many of which have now been adopted, are not likely to bring about the reforms intended.
The second concern was that parents and community leaders needed to be encouraged to get more involved in school and school district governance. But encouraging them without giving them a handbook about what to do is a waste – or worse. It may create activists, but of the “bull-in-the-china-shop” variety, who are likely to do as much harm as good.
The research for the book centered on my visits to forty high performing and transforming school districts, charters, private and parochial schools. After almost two hundred interviews with administrators, teachers, school board members, and others, the case for heightened parental and community involvement is clear and compelling. These people’s stories also re-affirmed my belief that legislative fixes from Washington or some state capital, no matter how well crafted, are likely to have only a limited impact in building the kind of schools we want to see.