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Viewpoint: The Supreme Court Takes on Affirmative Action -- Again

Sullivan, Andersen, Shabazz
Making their case: President Tom Sullivan, political scientist Ellen Andersen and social geographer Rashad Shabazz. (Photos: Sally McCay and courtesy of Andersen)

On Oct. 10, the Supreme Court began hearing arguments in Fisher v. University of Texas, a case that centers on whether race may be used in the college admissions decision process. Concerns are rippling through higher education, as the matter appeared to be settled in a landmark case in 2003 when the court upheld, with limitations, the use of race-conscious policies to promote diversity. UVM Today talked with university experts to better understand the issues and potential consequences of the court’s decision.

Tom Sullivan, UVM president, professor of political science and legal expert

I am pessimistic that the court may change significantly or overrule the precedent that was set in Grutter v. Bollinger, a case out of the University of Michigan Law School that I believe was correctly decided, validating a long history of well settled practice. I also believe that universities, both public and private, need to have the discretion to set their own admissions goals. If we’re going to ensure the vibrancy of our society and this democracy going forward, we need to have an educational system – from the early grades through higher education – that understands the value of diversity and pluralism and has the discretion and flexibility to foster that kind of environment. Otherwise we will fail our responsibility in universities, and society will be the less for it.

There’s a presumption in Supreme Court practice that if the court takes a case from a lower court – and a large portion of its cases are discretionary – that they’re going to reverse the court below which, here, affirmed the right of the University of Texas to make admission decisions, some of which are based upon diversity and race. So if this court were satisfied with the state of the law, with Grutter v. Bollinger, and satisfied with the way the U.S. Court of Appeals for the Fifth Circuit handled this, they wouldn’t have taken the case. Justice O’Conner, who wrote the 5-4 opinion the last time – I believe a very balanced, thoughtful opinion – is of course no longer on the court. And the newest justice, Elena Kagan, has recused herself (having been involved in the case in her former position as U.S. solicitor general), which means there are only eight justices sitting. If the justices were to tie 4-4 that automatically affirms the court below. But if there’s a majority that can come out of that eight, that could change the law of the land. I fear that this case could be going in the wrong direction.

Powerfully, when the last case came up, I think the two most important briefs in the case were not the University of Michigan or the plaintiff briefs, but rather briefs filed on behalf of the United States generals and by corporate America, signed by CEOs, that said, without question, in our sphere of hiring in corporate America or in the case of the military in foreign affairs and national security, we simply have to have diversity in hiring and promotion and education. It’s a national imperative. Those were two relatively conservative groups stepping up to a conservative Supreme Court saying, don’t change this; it will cause havoc in this country for national security reasons and for development in the workforce. Those same entities have filed briefs in this case. I hope this court will not be driven by a certain ideology held by some of the constitution that is said to be colorblind. It isn’t, it hasn’t been and we’re not ready for it to be colorblind because society hasn’t leveled the playing field for so many segments of our society. The court will do a great disservice if it now changes the laws on affirmative action. It would be very damaging for the country’s future. And I think the court will hurt itself very substantially if it reverses itself so quickly after this matter had been settled. It will look political and ideological and it will polarize this country even more than it is.

Ellen Andersen, associate professor of political science

This is one of the hardest issues and in some ways one of the most emotionally fraught issues for people of goodwill to talk about. There’s a certain class of people – Justice Scalia and Justice Alito fit into that – for whom you can’t have any policy that takes race into account. Done. End of sentence. But for the rest of us, including justices on the Supreme Court, if there continues to be some recognition that the playing field isn’t level, then saying from this non-level playing field we’re just not going to take race into account? The field never gets level. So when I talk to my students about this I analogize it to a game of Monopoly. If you start a game and one of the players already has a couple of houses, maybe a hotel, you lose the game, you will never catch up if you start from behind – at least without an amazingly lucky combination of throws. And we do see the amazing, lucky, smart people who make it through. But we continue to have waves and waves of evidence out there that says we’re not a race-blind society.

I find it so interesting when I talk with my students because they are not at all uncomfortable with the notion of using affirmative action when we talk about socio-economics. Or one of the secrets of college education right now: colleges making it easier for young men to get in than women because if we went strictly by the scoring we would have much more skewed ratios than we do. But everybody gets why a college might want to have a roughly even gender ratio. We don’t seem to have much of a problem with legacies or athletes. All of those seem acceptable to us. It’s race that makes us crazy. We are still incapable as a culture of having a thoughtful conversation about race and how it plays out in our political and social culture. Race speaks to something deep within us, a deep American anxiety. I’m not saying there’s no gender anxiety, but I’m saying that our race anxiety is even bigger – and I say that as somebody who studies sexuality and gender identity. Our dividing line is still race. So we have all of these workarounds.

The courts have known for years that affirmative action was going to have a hard time being upheld. The plain language of the 14th amendment would seem to indicate that just as you can’t write laws disfavoring people on the basis of race you can’t write laws favoring people on the basis of race either. So you get Justice O’Connor’s statement in Grutter that basically says we can’t do this for more than another 25 years. Previous courts have said we’ll do this for a little while but it’s got to be time-bounded. Even justices who want to continue with affirmative action policies recognize the somewhat tenuous legal grounding of it given the 14th amendment.

One of the things that seems to make people so angry is the notion that middle class and wealthy African Americans can benefit from affirmative action in ways that poorer whites can’t. I think that whites want to say that class trumps race, that class is the most important thing, but there also seems to me to be this kind of anger that there are middle class black people. And when we’re talking about diversity in colleges, it has to include a diverse population of African Americans and that might include African Americans who play cello. Or are on the ski team. If we’re thinking as educators here, which of course I always am, I absolutely want that spectrum. Fewer life experiences make the classroom intellectually poorer. So I can see all of the reasons why colleges want the freedom to do this.

I want to give colleges the discretion to make good student bodies and those aren’t all about who got the highest SAT scores, they’re just not. But how do we take this issue and factor it into what the law requires? I don’t know if I have any clear answers. Do I think that affirmative action policies will eventually be overruled by the court? Yes. Do I think it’s going to happen this time? As with everybody else, I’m going to tell you that it is all about Justice Kennedy, but I don’t have any great insight there. I don’t think (decisions) are just politics. It’s very clear – though ideology plays into how justices read the law – that the Supreme Court actually does spend a lot of time thinking about what the law requires of them.

And when liberty comes into conflict with equality, which one wins? Because you know what? The constitution doesn’t tell us. It just doesn’t.

Rashad Shabazz, assistant professor of geography

If we look at the push against affirmative action in the University of California system in Bakke in 1978, we saw enrollment for blacks and Latinos and also for poor working class students plummet. Potentially what we can see now is a nationalization of that trend. It’s troubling.

One of the things I find fascinating about the case is it follows a standard logic that has been used to gut affirmative action over the last three decades – entitlement. Affirmative action uses race as one among many criteria determining whether or not someone would be a good fit for a university. I think that can’t be overemphasized in cases such as this one. Ms. Fisher said that had she not been a white woman she would have been admitted to the University of Texas and they said, well, no, not necessarily, based on your record. In that exchange we see two things: one is that Ms. Fisher sees race as the only reason that certain people, particularly people of color, got into the University of Texas and she didn’t. The second is that it demonstrates the entitlement she feels – that she would have gotten into the university and she sees that position as already hers, all she had to do was apply to it. I think that logic has played out over and over again in debates around affirmative action. You hope that the Supreme Court, having heard this kind of logic over and over, would be savvy enough to identify it and push back against it. But we have a different court today.

So what we’re seeing broadly is a rehashing of decades-old discussions about why affirmative action is bad but we’re seeing it in a new context: the idea that we live in a post-racial country, we live in a country with a black president and therefore policies that address past discrimination are no longer necessary. That make this a dangerous time for affirmative action because we can see that the ascendance of Barack Obama can, ironically, help to erode the pathway that enabled him to go to Columbia, to go to Harvard, to become the president of the United States. Affirmative action was one of the mechanisms that helped create a pathway for people like him, people like myself who teach in the academy.

We’re seeing universities attempting to diversify the student body, the faculty, the staff and those efforts are positive. They’ve helped enrich institutions like ours. But at the same time, we’ve been seeing poverty and unemployment rise and so that pressure that’s being put on both communities of color and white communities is making affirmative action a more contentious issue, a flashpoint. It’s read as this archaic social policy that’s far outlived its use, and the reality is that people of color and poor people in general are in worse situations than they were two decades ago. This seems to me to be the time when we need policies that help create a pathway for people into institutions like the university to help them get jobs when they have historically been locked out. It seems like the moment for affirmative action, not the moment to erode it.