Supreme Court Could Overturn Affirmative Action

Wednesday, October 10, 2012

Banner at the University of Texas, Austin (Flickr user Derek Key)

On June 23, 2003, Supreme Court Justice Sandra Day O’Connor read her majority opinion in Grutter v. Bollinger, the case that upheld the affirmative action policy at the University of Michigan Law School.

"It has been 25 years since Justice Powell first suggested approval of the use of race to further an interest in student body diversity in the context of higher education" Justice O'Connor said. "We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest that we approve today."

Today, just nine years after Justice O'Connor issued the Court's decision in Grutter, the Supreme Court will hear Fisher v. University of Texas, Austin, a case that has the potential to overturn affirmative action in higher education. The university grants admission to all Texas students in the top ten percent of their class. Students who miss that cut-off are reviewed on a number of factors, including test scores, recommendation letters, leadership, and race and ethnicity.

Abigail Fisher, a 22-year-old white woman from Sugarland, Texas, missed the ten percent cut-off and was rejected. She sued the school in 2008, and the Supreme Court decided to take the case last February.

Justice O’Connor retired from the Supreme Court in 2005. Her replacement, Justice Samuel Alito, is decidedly against affirmative action, a fact that's led most Court-watchers to speculate that the justices are likely to overturn the Grutter decision.

As the Supreme Court hears arguments on the constitutionality of affirmative action, The Takeaway conducts its own debate: Is it time to put an end to affirmative action in higher education?

Paul Butler argues for affirmative action. Paul is a professor at Georgetown Law School and author of "Let's Get Free: A Hip-Hop Theory of Justice."

Arguing against affirmative action is Richard Sander, professor at UCLA Law School and co-author of the new book, "Mismatch: How Affirmative Action Hurts Students it’s Intended to Help, and Why Universities Won’t Admit It."


Paul Butler and Richard Sander

Produced by:

Jillian Weinberger

Comments [16]

dbmetzger from upper west side

Allan West part of a black task force? Makes perfect sense when the campaign is pandering to white prejudices by lying about doing away with need to work regulations for welfare recipients. And the only plan Romney has is trickle down economics. The Obama supporter sounded like Alan Colmes playing foil to Sean Hannity.

Oct. 11 2012 03:28 PM
Marilyn from Florida

I have never heard a mention, while exploring this topic, of the tradition of legacy. Why isn't that issue before the supreme court that lets any bimbo or bimbette in before ANYONE else.

Oct. 11 2012 06:46 AM
scott from tucson

i agree to all the stuff o conor says because they cant be races and not let someone come into there college because of skin color or gender.

Oct. 10 2012 11:56 PM

In the 1960's "Anti-racists" forced ALL and ONLY white countries to open their borders to non-white immigration. Then "Anti-racists" forced ALL and ONLY white people to "integrate" or face consequences for being "naziswhowanttokill6millionjews." Now "Anti-racists" are calculating that ALL and ONLY white children will become minorities and eventually EXTINCT. If "Anti-racists" did this to ALL and ONLY black countries, it would be called a genocide. "Anti-racist" is a codeword for anti-white.

Oct. 10 2012 07:42 PM
RW from Detroit

"Disadvantaged" has evolved. Economics and location are key foctors. I was lucky. The public school I went had great teachers and was small enough it could give the smart students the challenges they needed while still giving the less gifted students the assistance they needed. I *could* have used my status as one quarter Native American to get favorable treatment for college adminission, but my test scores were in the top 1%. Some friends of mine from other schools weren't so lucky. Their schools failed to meet their needs, so their scores were not as high as they could have been (even very smart kids will score significantly lower when they come from poor schools - or schools that treat them as "problem students").

Oct. 10 2012 05:01 PM
Sarah from NY

As the parent of a senior looking at colleges, I know firsthand that the biggest affirmative action initiative (though an unwritten one) is that extended to all males applying to most liberal arts colleges and universities. There are hundreds of schools that will look more favorably on young men with less-than-perfect stats as opposed to young women with better grades and scores. The schools need to keep their male/female ratios as close to 50/50 as possible. Most women don't want to attend a co-ed school with a 30/70 ratio, which is increasingly common.

Oct. 10 2012 03:21 PM
Angel from Miami, FL

What I see, Larry, is an opportunity for folks like L3W1 (if that's his real name) to go off on white supremacist rants. @L3WI, Asia is filled with Russians, Indonesias, Indians, Mongolians... all of varying shapes and colors. Africa is also Arabic and Bedouin. All black Africans are not made the same. And neither are all "whites". That term you stick to is made up of ethnicities people like you only include when convenient. The Gaelics, Latins, Normans, Slavs, and myriad of Mediterraneans were rarely included in your "race" preservation theories. Please, learn about this species of primate before you go categorizing it as a child would organize his crayons at recess. Just because your father was stupid doesn't mean you have to follow suit.

Oct. 10 2012 02:29 PM
Larry Fisher from Brooklyn, N.Y.

I see this as a see-saw issue which will just go back and forth forever...and maybe that is the right way to deal with it. When it is abused by one side, it turns over to the will never be worked out any other way

Oct. 10 2012 01:16 PM
L3W1s from White Country


Everybody says there is this RACE problem. Everybody says this RACE problem will be solved when the third world pours into EVERY white country and ONLY into white countries.

The Netherlands and Belgium are just as crowded as Japan or Taiwan, but nobody says Japan or Taiwan will solve this RACE problem by bringing in millions of third worlders and quote assimilating unquote with them.

Everybody says the final solution to this RACE problem is for EVERY white country and ONLY white countries to “assimilate,” i.e., intermarry, with all those non-whites.

What if I said there was this RACE problem and this RACE problem would be solved only if hundreds of millions of non-blacks were brought into EVERY black country and ONLY into black countries?

How long would it take anyone to realize I’m not talking about a RACE problem. I am talking about the final solution to the BLACK problem?

And how long would it take any sane black man to notice this and what kind of psycho black man wouldn’t object to this?

But if I tell that obvious truth about the ongoing program of genocide against my race, the white race, Liberals and respectable conservatives agree that I am a naziwhowantstokillsixmillionjews.

They say they are anti-racist. What they are is anti-white.

Anti-racist is a code word for anti-white.

Oct. 10 2012 12:11 PM
Brenda from New York City

We need affirmative action but we need to update what it means. If we really want to even the playing field we need to go further than ethnicity and race and need to include economic class. But when we talk about college admissions, we really need to understand how that particular sausage actually gets made. It is never a question of merely an assessment of grades/scores/rankings which determine an acceptance or rejection letter.

Oct. 10 2012 12:04 PM
Angel from Miami, FL

I'm not for preferences based on ethnicity, but I do see a need for some preferences in cases of low income level or similar disadvantages.

However, I don't understand Abigail Fisher's intent here. She was accepted at another college and graduated with a degree so it's not like she was denied higher education. She claims that she knew of ethnic kids had lesser credentials than her. But this is the face of UT's evaluation of those same kids. What's really motivating her?

In 50 years will be an "Abigail Fisher" seeking affirmative action for light-skinned students who feel overlooked because of their minority status?

Oct. 10 2012 11:35 AM
Cori from Massachusetts

Something both Butler and Sander both ignored in their debate is the important question of why are many Black and Latino students not achieving scores high enough to get accepted into the elite institutions on their own merit? Perhaps it has something to do with the higher rates of poverty and if we "leveled the playing field" for everyone, then their acceptance rate would go up on its own. But how can we "level the playing field" if we limit opportunities by sending Black and Latino students to lesser institutions? We should keep some form of affirmative action and increase support for all struggling students or (even better) improve opportunities (ie. funding) at the k-12 level so that all students can have a strong application for college (and graduate)!

Oct. 10 2012 11:25 AM
Thomas A. Hall from Hollywood, Florida

I live in South Florida, which is the most ethnically diverse place in the USA (At least, that I've seen in my travels). I have no problem with the original intent of affirmative action, which, as I understood it at the time, was to provide opportunity to black Americans who had been unfairly held back by racism, Jim Crow laws, and the vestiges of slavery. One may wonder how many generations of black Americans need this assistance before we conclude that its work has been accomplished (Does every black American have to graduate from college? Own their own business? Live in the suburbs? What?)

That said, I do not understand why, for example, Colombian, Cuban, Venezuelan and Brazilian immigrants to South Florida are entitled to "minority status" and the benefits of affirmative action. These immigrants, many of whom are my friends, were never the subject of US slavery, racism or Jim Crow discrimination. In fact, everything about their move to the US has been a blessing in that it provided them with unparalleled opportunities to pursue their personal lifestyle and career goals. Why then, do they also benefit from affirmative action? Where is the rationale for this?

It is interesting that, with the growth in immigration, the Democratic Party and, to a lesser extent, the Republican Party have pivoted to talk about "diversity" rather than justice for black Americans. Since the original justification for affirmative action does not pertain to immigrants, we are now hearing about the wonders of "diversity." Well, here's what diversity means in South Florida: Rolex-wearing, Lexus-driving immigrant business people with Hispanic last names winning government contracts with extra points given for their minority status. How does this in any way relate to a need for affirmative action?

If there is one common aid that the government provided to assist black Americans in their ascent to middle and upper middle class status, it was government jobs. In a world where it was once hard for a black American to get a good job, government provided opportunity. We are now in our second or, maybe, third generation of achievement amongst middle class black Americans. They, and their families, are on a great trajectory. So, do they need affirmative action any longer? I would say, "No."

Affirmative action, if required in any sense, should be applied to those who are in economic need, not based on skin color, nation of origin, etc. Poor people, of all colors and nationalities, really do have many hurdles to overcome to find the American Dream. Let us seek rational ways to assist them in achieving their goals rather than continue this diversity program known as "affirmative action."

Oct. 10 2012 10:58 AM
fuva from harlemworld


Oct. 10 2012 10:17 AM
fuva from harlemworld

I appreciate Tom's insight. It challenges my perception of the advantaged as un-self-aware.

The fact that we are even having this discussion right now -- with a persistent black/white statistical divide -- attests to the ongoing need for government intervention, to undue myriad damage done by centuries of preferential treatment for whites.

Oct. 10 2012 10:07 AM
tom from detroit

I am white, middle-class, educated and articulate. Predominantly, this is nothing but luck of birth. As such, I have been given passes throughout my life. I see that my children are treated with kindness and openness at every turn. Whether it has been with a police officer, neighbor, educator, or employer my luck of birth continues to open doors for me. However, I know my children an I benefit from diversity. Even at times where imposed social justice my not work in my favor, my society is better for it. Affirmitive action is not a perfect solution, but it is an imperfect world. Racism masquerading as an argument about competitiveness or devotion to fair play is certainly not the road to a more perfect society.

Oct. 10 2012 09:38 AM

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