A Landmark Decision or just an Affirmation?

By: Morgan Davis
Blog Category: Racial Implications of Recent Supreme Court Decisions

The Supreme Court’s decision in Fisher v. University of Texas was greatly anticipated, but when the 13-page decision was issued, was it really a decision at all? The Court’s 7-1 decision reaffirmed the Court’s position that diversity in higher education is of great importance. However, the Court declined to settle the ongoing dispute of the legality or constitutionality of affirmative action. Ultimately, the case was remanded back to the Fifth Circuit, leaving various interest groups and universities not knowing exactly what to make of the decision. It is a win in some respects, because the decision did not invalidate the essence of affirmative action in an educational environment. Supporters of affirmative action take the Court’s decision as a sign that the Court supports the consideration of race in admission policies to ensure and promote diversity.  However, the remand will force the University of Texas to further defend the legality of its admission procedures.  On remand the “reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.” The decision will ultimately encourage other colleges and universities to be proactive ensuring that their admission policies will withstand the Court’s strict scrutiny test.

The opinions expressed herein are strictly those of the author and do not necessarily reflect the opinions of the Widener Journal of Law, Economics & Race. 

Sources:

After Fisher v. University of Texas: Implications for Education Research, Theory, and Practice, Fall 2023 Harvard Educational Review, http://hepg.org/her/abstract/1252.

Joy Resmovits, Fisher v. University of Texas at Austin Ruling Leaves Universities in Limbo, Huffington Post (June 24, 2013), http://www.huffingtonpost.com/2013/06/24/fisher-v-university-of-texas-at-austin-ruling_n_3434687.html.

Affirmative Action Admission Policies After Fisher

By: Andrew Patrick
Blog Category: Racial Implications of Recent Supreme Court Decisions

The recent United States Supreme Court decision in Fisher v. University of Texas at Austin did little to clear up the issues surrounding affirmative action’s role in the higher education admission process.  The case involved a challenge to the University of Texas at Austin’s (“University”) undergraduate admission process, which considered potential applicant’s race.   The Petitioner, a white female, sued the University after being denied admission alleging that the consideration of race in the admissions process violated the Equal Protection Clause.   The 7-1 decision vacated the judgment of the Court of Appeals holding that the lower court failed to correctly apply the “strict scrutiny standard” consistent with precedent.

The opinion authored by Justice Kennedy indicated that the Fifth Circuit did not make an “independent searching examination,” which was essential in determining whether the University’s affirmative action plan was narrowly tailored.   The University had the burden of showing that there were “no workable race-neutral alternatives [which] would produce the educational benefits of diversity.”  The Court of Appeals mistakenly gave deference to the University’s judgment with respect to the means of achieving the compelling interest of diversity.   The case was remanded to the lower court where the University will be required to demonstrate that their admission process is in fact narrowly tailored to achieving the educational benefits of diversity.

Going forward, this decision imposes a significant evidentiary burden on educational institutions that consider racial classifications in the admissions process. Universities will be required to “demonstrat[e], before turning to racial classification, that available, workable race-neutral alternatives do not suffice.”

Source:

Fisher v. University of Texas at Austin, 132 S.Ct. 2411 (2013).

The Great Race: Minority Advancement in the Corporate World

By: *Chantal Jones

Blog Topic: Minorities in the Corporate World

The Great Race: Minority Advancement in the Corporate World

There is much to say about the strides that minorities have been making in the corporate world. Minorities have made their footprints in executive positions in some of the highest revenue generating corporations. For example, Rodney Adkins is an African American who is the Senior Vice President of IBM Systems and Technology Group; Pamela Culpepper, who is Hispanic, is the Senior Vice President of PepsiCo; Carolynn Brooks, an African American woman, is the Vice President of OfficeMax, Inc.; and lastly, Cindy Brinkley, a Caucasian woman, is the Vice President of talent development at AT&T.[1]

Largely as a consequence of affirmative action programs, established during the Civil Rights movement, minorities recently begun to participate in certain areas of society in ways previously restricted to privileged members of the majority group.[2]   These affirmative action programs had their most direct and immediate effect on minorities that were well-prepared and poised to take advantage of any opportunity that arose in the occupational system.[3]

However, these programs were seen as a gift and a curse because while they have been successful in giving minorities great opportunities to advance in the workforce, minorities’ intellect and credentials have been called into question, which created yet another obstacle to overcome. Affirmative action programs are starting to become obsolete; however, they have been replaced by Diversity programs that were created to increase diversity amongst corporations.

As a minority with aspirations of being successful in the corporate world, I recognize the challenges that we face. I am appreciative of diversity programs, but I think that it is unfortunate that these programs have to be created at all just to ensure equality in “the land of the free.” I do believe that minorities have come a long way by establishing themselves in executive positions in the corporate world, but I think there is much more work to be done. I am very optimistic that minorities will increasingly climb the ranks of the corporate world as long as they remain prepared and ready, when opportunity knocks.

The opinions expressed herein are strictly those of the author and do not necessarily reflect the opinions of the Widener Journal of Law, Economics & Race.

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*Chantal Jones is currently a staff member on the Widener Journal of Law, Economics & Race. To learn more about Chantal  click here to visit her page.
[1]Black Enterprise, Top Executives in Diversity: Our editors identify the leaders of corporate inclusion, Black Enterprise (June 1, 2011), http://www.blackenterprise.com/mag/top-executives-in-diversity.
[2] Elijah Anderson, The Social Situation of the Black Executive, in 2001 Race Odyssey: African Americans and Sociology, 316, 317 (Bruce R. Hare ed., 2002).
[3] Elijah Anderson, The Social Situation of the Black Executive, in 2001 Race Odyssey: African Americans and Sociology, 316, 320 (Bruce R. Hare ed., 2002).

Affirmative Action and College Admissions

Blog Category: Affirmative Action

by: Amy Hummler

When does a university’s use of race in determining admissions to its undergraduate program violate the Equal Protection Clause? This is an issue that the Supreme Court must once again decide. On October 10, 2012, the Supreme Court heard the case of Abigail Fisher, who claimed her constitutional rights were violated when she was unfairly denied admission to University of Texas at Austin’s (“UT”) undergraduate program because she is white. The Fifth Circuit upheld the constitutionality of UT’s admission process in January of 2011 affirming UT’s use of race elements in determining undergraduate admissions as constitutional. (631 F. 3d 213 (5th Cir. 2011)). Pursuant to Grutter v. Bolinger, UT’s admission program not only guarantees students who are in the top 10% of their high school graduating class admission to the school, but also considers the race, and other various attributes, of each applicant. The Supreme Court held in Grutter that a university “will not violate the equal protection clause if it narrowly tailors its use of race in admission decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.” (539 U.S. 306, 343 (2003)). Thus, the Fifth Circuit interpreted this as UT is allowed to consider the attributes of individual applicants of all races.  631 F. 3d at 221.

When UT guaranteed admissions to its undergraduate programs to the top ten percent of students, this increased the number of African Americans and Hispanics enrolled in UT. However, UT claimed that this increase in minority admissions still did not offer the diversity UT desired in order to meet its compelling interests of “promoting cross-racial understanding, breaking down stereotypes, and preparing students for an increasingly diverse workplace.” As a result in 2004, UT began to consider race among many other factors in determining admissions into its undergraduate program. Within a few years, UT was one of the top public universities in the country for producing undergraduate degrees for minority groups. Abigail Fisher, an in-state applicant, sought enrollment at UT Austin in Fall of 2008 and was denied.

This October, UT’s lawyer explained to the Supreme Court (who reaffirmed college affirmative action by a 5-4 majority in Grutter) that the university uses “holistic’ review of each applicant’s characteristics in addition to an applicant’s race. It was reported that Supreme Court Justices were ‘skeptical’.” After all, UT’s use of its “color-blind admittance” for applicants who were in the top ten percent of their class did increase diverse enrollment, which works in Texas where there are high schools that are nearly all African-American and Hispanic. UT argued that its top ten percent program admitted students at disadvantaged schools that have lower standardized test scores into the university, leaving out the average minority kids at better suburban high schools. Thus the use of its affirmative action program will admit more minority students from middle class and professional families. This apparently did not sit well with the Justices, including Justice Alito, who stated “I thought that the whole purpose of affirmative action was to help students who come from underprivileged backgrounds.” The balance of the court on affirmative action has shifted with Justice Alito replacing Justice O’Connor.

But despite this majority shift, the real issue is whether public universities are using Grutter to overstep their use of affirmative action. UT’s top 10% program not only increased enrollment of minorities, but also helped underprivileged kids that attend schools that are less competitive in standardized testing to gain admission into a public university. This program is something I believe should be adopted by all public universities. However, I agree with Justice Alito that that the use of affirmative action should be used to help underprivileged children in poorer communities to gain admissions to higher education. These underprivileged children, often minorities, do not have access to the better educational programs that the more privileged communities have. Thus, the use of race to admit minority students from the more privileged communities seems to be counter-intuitive.

 

The opinions expressed herein are strictly those of the author and do not necessarily reflect the opinions of the Widener Journal of Law, Economics & Race.

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*Amy Hummler is currently a staff member on the Widener Journal of Law, Economics and Race. To learn more about Amy Hummler, click here to visit her page: Amy Hummler

To learn more about this topic, click the link below:

http://online.wsj.com/article/SB10000872396390443982904578047192287305354.html

Should Affirmative Action be Socioeconomically Based?

Blog Category: Affirmative Action

By: Patrick Gallo*

The landmark case of Grutter v. Bollinger solidified the constitutionality of race-conscious admissions.  In Grutter, the Supreme Court held that “… the Equal Protection Clause does not prohibit the [University of Michigan] Law School’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.”[1]  The Supreme Court limited such a ruling to a finite period of twenty-five years, suggesting that one day race would no longer be a metaphorical hurdle to opportunity.[2] Specifically, in Grutter, the University of Michigan Law School employed an individualized “holistic review” of law school applicants, awarding a “plus” to minority students in order to achieve a “critical mass” of minority students and promote “…’cross-racial understanding’ … to break down racial stereotypes, and ‘enable… [students] to better understand persons of different races….’”[3]

The Supreme Court’s landmark decision in Grutter is being revisited in Fisher v. the University of Texas at Austin and consequently has placed affirmative action on the chopping block.  The premise underlying affirmative action is that “[y]ou do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race … and then say, ‘[y]ou are free to compete with all the others,’ and still justly believe that you have been completely fair.”[4]

Deborah Archer, a law professor at New York Law School, argues that race-conscious admissions programs need to be continued because “[r]ace-conscious admissions programs…are designed to overcome the systemic racism and serve as a vital pipeline to educational and professional opportunities for minority students.”[5]

David Sacks and Peter Thiel contend, however, that “[t]he basic problem is that a racist past cannot be undone through more racism. Race-conscious programs betray Martin Luther King’s dream of a color-blind community, and the heightened racial sensitivity they cause is a source of acrimony and tension instead of healing.”[6]    Sacks and Thiel further maintain that race-conscious programs do not help the disadvantaged, but rather, “primarily benefit minority applicants from [the] middle- and upper-class” while “hurt[ing] poor whites and even many Asians….”[7]  Thus, Sacks and Thiel conclude that “[i]f preferences were truly meant to remedy disadvantage, they would be given on the basis of disadvantage, not on the basis of race.”[8]

Via Fisher, the Supreme Court can preserve its milestone decision in Grutter, or vitiate it altogether and with it, affirmative action.  Alternatively, Fisher also provides the Supreme Court with an opportunity to carve out a new kind of affirmative action that is socioeconomically based.  Such would be appropriate considering that today’s greatest metaphorical hurdle and impediment to success is arguably one’s socioeconomic status rather than one’s race.[9]

 

The opinions expressed herein are strictly those of the author and do not necessarily reflect the opinions of the Widener Journal of Law, Economics & Race.

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*Patrick Gallo is one of the Articles Editor on the Widener Journal of Law, Economics and Race. To learn more about Patrick Gallo, click here to view his page: Patrick Gallo

[1] Grutter v. Bollinger, 539 U.S. 306, 343 (2003).

[2] See id. at 343.

[3] Id. at 330.

[4] David Leonhardt, Rethinking Affirmative Action, NY TIMES, Oct. 13, 2012 (quoting a 1965 speech of President Lyndon B. Johnson “that laid the groundwork for affirmative action”), available at http://www.nytimes.com/2012/10/14/sunday-review/rethinking-affirmative-action.html?pagewanted=all.

[5] Deborah Archer, Why We Need Race-Conscious Admissions, THE NATIONAL JURIST, Oct. 2012, Vol. 22, No. 2, p. 13.

[6] David Sacks & Peter Theil, The Case Against Affirmative Action, STANFORD MAGAZINE, available at http://alumni.stanford.edu/get/page/magazine/article/?article_id=43448.

[7] Id. (citing Thomas Sowell of the Hoover Institution).

[8] Id.

[9] See Rachel Potucek, Affirmative action: Pros and Cons, K-STATE PERSPECTIVE, Fall 2003 (quoting Professors Krishna Tummala and John Fliter), available at http://www.k-state.edu/media/webzine/0203/aapros&cons.html; see also Leonhardt, supra, Rethinking Affirmative Action; Spencer Lindsay, Status, Not Race, Should Be Basis of Affirmative Action, THE BADGER HERALD, Apr. 25, 2012, available at http://www.huffingtonpost.com/the-badger-herald/status-not-race-should-be_b_1455359.html.

For more information concerning the foregoing topic you can visit the following:

http://www.cbsnews.com/8301-250_162-57529223/supreme-court-takes-up-affirmative-action/?pageNum=2&tag=page

http://usatoday30.usatoday.com/news/education/2010-06-17-diversity17_ST_N.htm

 

 

 

 

OFCCP abandons their position in attempting to implement widespread Affirmative Action policies in the health care industry

Blog Category: Affirmative Action

Written by: *Dan Baum

The Office of Federal Contract Compliance Programs (“OFFCP”) announced that they will rescind Directive 293. Directive 293 provides guidance in determining whether a health insurance provider falls under OFFCP’s jurisdiction. OFFCP jurisdiction is necessary to subject healthcare employers to Affirmative Action commands.

Prior to this, a ruling by OFFCP had announced for the first time that it has jurisdiction over healthcare providers enrolling in the Medicare advantage program and Medicare prescription drug programs (parts C and D).  Historically, the OFCCP has taken the position that participation in Medicare, TRICARE and Medicaid is a healthcare provider’s acceptance of financial assistance, not their acceptance of a government contract.  Healthcare organizations with 50 or more  employees that enter into employment contracts with the federal government are subject to affirmative action obligations under the Rehabilitation Act of 1973, and the amended Veteran’s Readjustment Assistance Act of 1974. The two acts require employers to ensure non-discrimination in their employment practices, and create written affirmative action plans to ensure compliance.

Because healthcare providers’ acceptance of Medicaid has traditionally been viewed as financial assistance, they were usually  outside of OFCCP’s jurisdiction.  However, in Florida Hospital of Orlando, an Administrative Law Judge (“ALJ”) stated that healthcare providers participating in TRICARE are government contractors, implicating that they would be subjected to Affirmative Action requirements.  However, the passage of the National Defense Authorization Act essentially reversed the findings of Florida Hospital and directive 293. In response, the OFCCP gave up their fight for obtaining jurisdiction by rescinding the directive.

For now healthcare providers will not be subjected to Affirmative Action requirements under the OFCCP, however, OFCCP stated in a webinar that they will be reviewing on a case-by-case basis  to determine whether Medicare (specifically parts C and D) providers will be subjected to OFCCP contract/subcontract jurisdiction.  Therefore providers must continue to monitor their sources of federal revenue to determine whether they are within OFCCP’s jurisdiction, and if so, ensure compliance with Affirmative Action regulations.

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*Dan Baum is currently a staff member on the Widener Journal of Law, Economics and Race. To learn more about Dan Baum, click here to view his page: Dan Baum
Sources:
Health Lawyers Weekly, Feb 18, 2011, Vol. IX Issue 7. OFCCP Clarifies When Healthcare Providers Must Comply with Affirmative Action, available at: http://www.hallrender.com/health_care_law/library/articles/753/Bumgarner_HLW_article1.pdf
Fulbright & Jaworski L.L.P., Publication, OFCCP Rescinds Directive Regarding Its Jurisdiction Over Health Care, available at: http://www.fulbright.com/index.cfm?DETAIL=yes&FUSEACTION=publications.detail&NEWPAGE=0&PUB_ID=5499&SITE_ID=494&pf=y
Smith, Gambrell & Russell, L.L.P., Publication, OFCCP Rescinds Medical Providers Directive 293, available at: http://www.sgrlaw.com/resources/client_alerts/1838/

Affirmative Action Programs in Colleges and Universities

Blog Category: Affirmative Action

Written by: *Staci Pesin

As Law Students, we have all taken Constitutional law in law school, and if not you will shortly.  For those of you who have taken Constitutional law, we should all be familiar with these most recognized cases: Roe v. Wade, Brown v. Board of Education, and Marbury v. Madison. However, there is a case that you might not be familiar with, the case of Grutter v. Bollinger, which was an affirmative action case.  In 2003, the Supreme Court held in Grutter v. Bollinger  that the University of Michigan was allowed to use an affirmative action based admission policy in the interest of promoting diversity at their school.

Nine years later, the Supreme Court has decided to hear another affirmative action case.  This case took place in Texas. A Caucasian student alleged that the University of Texas denied her admission because of her race and that the school gives preferential treatment to African American and Latino applicants.  The University of Texas has a race-based admission plan where it admits the top ten percent of high school students. With many high schools in Texas heavily made up of minority students, racial diversity has increased at the university.  In addition, The University of Texas also has a class-based program for economically disadvantaged students, which has also increased racial diversity at the university.

Carolyn Warner, a student writer for The Journal of Gender, Race & Justice, suggests that it is time to end race-based affirmative action but notes that racial diversity in schools is a compelling government goal.  She suggests we focus on fixing the class gap which would help bridge the racial gap.  Studies have shown that affirmative action programs based on race help the economically advantaged and the author suggests that with class-based affirmative action we will be helping the economically disadvantaged as well as minorities.  Her ultimate goal is certainly noble, however fixing the class gap is not going to happen overnight.

 

The opinions expressed herein are strictly those of the author and do not necessarily reflect the opinions of the Widener Journal of Law, Economics & Race.

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*Staci Pesin is currently the Senior Managing Editor on the Delaware Campus. To learn more about Staci Pesin, click here to view her personal page: Staci Pesin
Article written by Carolyn Warner, Student Writer for The Journal of Gender, Race & Justice See:  http://blogs.law.uiowa.edu/jgrj/?p=797  to read the full article.

Fisher v. University of Texas: An Objective Analysis

Blog Category: Affirmative Action

Written by: *Jay S. Patel

The use of race in admissions has been hotly debated; proponents extolling its use to create diverse student bodies, critics denouncing it as a form of “reverse discrimination”. Recognizing these competing objectives, the Supreme Court has continually balanced the appropriateness of affirmative action policies against the weighty interests of equal protection.

Equal Protection and Affirmative Action
Equal protection generally forbids the government from treating citizens in an unequal manner. [1]  If a state or the federal government attempts to treat citizens in an unequal manner, their conduct will be reviewed under three different governing standards. Because affirmative action necessarily involves race, any policy purporting to use race is reviewed under the most rigorous standard: strict scrutiny. [2]  Strict scrutiny analysis bars the use of race unless its inclusion furthers a legitimate and compelling governmental interest and the use of race in the policy is narrowly tailored to that end. [3]  Supreme Court jurisprudence has also added two limitations in affirmative action cases. University officials can only use race as a plus factor, that is, they can view an applicant’s race in light of their entire application. [4]  Additionally, officials cannot assign specific “points” for an applicant’s race, or set aside a fixed number of seats for minority applicants. [5]

University of Texas Plan: Proper or Improper?
The University of Texas plan is proper under Grutter. Provided the Supreme Court does not overrule Bakke and its progeny, the University of Texas plan passes constitutional muster. The University of Texas demonstrated that after the passage of the “Top Ten” law, minority enrollment dropped to levels not seen since the mid 1990’s.[6]  Given the increases in the minority population in Texas in the interim, the state demonstrated a compelling interest in creating a diverse class that provided benefits for all matriculants.[7]  Their interest was legitimate by Grutter’s prescription.  Grutter asked whether a contested program was narrowly tailored to achieve an overall goal: a rich, vibrant and diverse class of matriculants.[8]  On this, it was successful. The program did not set aside seats for minority students, nor did it award special “points” to minority applicants.[9]  Its use of race was nominal and only one of many factors which was considered in a methodical and precise formula designed to admit the top students.[10]

Conclusion
Under the rigorous standard set forth by the Supreme Court in equal protection cases, and the special factors prescribed to govern affirmative action policies, the University of Texas policy should be upheld as proper under Grutter.

The opinions expressed herein are strictly those of the author and do not necessarily reflect the opinions of the Widener Journal of Law, Economics & Race.

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*Jay S. Patel is currently a staff member on the Widener Journal of Law, Economics & Race. To learn more about Jay S. Patel click the link to visit his personal page: Jay S. Patel
[1] See Grutter v. Bollinger, 539 U.S. 306, 326 (2003); U.S. Const. amend XIV, § 1.
[2] Grutter, 539 U.S. at 326.
[3] Id. (emphasis supplied).
[4] Id. at 334 (quoting Regents of the University of California v. Bakke, 438 U.S. 265, 315 (1978) (opinion of Powell, J.)
[5] See Gratz v. Bollinger, 539 U.S. 244, 270 (2003).
[6] Brief of Respondent at 10, Fisher v. University of Texas at Austin, No. 11-345 (2012).
[7] Id.
[8] Grutter, 539 U.S. at 328.
[9] Brief of Petitioner, supra note 6, at 11.
[10] Id. at 11-14 (relaying in significant depth the methods employed to judge applicants and noting the minimal use and impact of race in admissions).

The Widener Journal of Law, Economics & Race 2012 Fall Semester Blogs

The Widener Journal of Law, Economics & Race would like to announce its 2012 Fall semester blogs.

This semester, the blogs will focus on four central topics:

1) Immigration, 2) Affirmative Action, 3) Race and Economics in the Media and 4) The Economics of Discrimination.

New blog entries will be added every week, up until finals so that we can keep the Widener Community informed about these important topics. The blogs can be accessed by clicking the blogs & posts link.

Thank you once again for all of your support.

 

Sara Horatius, Web & Technology Editor

Kept Promises? Grutter & Diversity

Written by: Stephen Mahan

When the Grutter decision upheld affirmative action at the University of Michigan Law School, many commentators hailed it as a step forward in race-relations.  Our own law school, Widener, has taken steps to further encourage and foster diversity within its halls, in the hopes of obtaining those educational benefits associated with diversity, by appointing its own “Multicultural Affairs Officer.”  (Link to announcement.)  Meera E. Deo, of the Thomas Jefferson School of Law has recently written on Grutter’s actual effects on race-relations in the law school classroom.  See Meera E. Deo, The Promise of Grutter: Diverse Interactions at the University of Michigan Law School, 17 Mich. J. Race & L. 63 (2011).  (Link to article.)  But a different type of survey might better reveal how race-relations in the legal profession have advanced since Grutter – a survey of more recent minority graduates and their experiences in the job hunt.  It has been some years since Justice Clarence Thomas graduated, when “Yale meant one thing for white graduates and another for blacks, no matter how much anyone denied it.”  Clarence Thomas, My Grandfather’s Son 99 (2007) quoted in Jeffrey Toobin, The Thomases vs. Obama’s Health Care Plan, The New Yorker, August 29, 2011.  (Link to article.)  But, to borrow a phrase from Justice Thomas, has the “taint of racial preference” – that “You only got into U of M because you’re a minority” – yet dissipated?

The opinions expressed herein are strictly those of the author and do not necessarily reflect the opinions of the Widener Journal of Law, Economics & Race.