Supreme Court Punts Decision on Affirmative Action

Justices compromise on a nonruling on the value of race in education.

By Chris Hoenig


In a decision that indicates a compromise among the justices, the Supreme Court has elected not to rule on a challenge to affirmative action argued before it late last year. The 7-to-1 ruling from the court provides a small victory for opponents of affirmative action, vacating a decision by the Fifth Circuit Court of Appeals that was in favor of the narrow use of racial preferences and sending the case back to the lower court with orders to give it more intense scrutiny.

The case was brought by Abigail Fisher, a white student who claims she was discriminated against by the University of Texas at Austin because of her ethnicity, after the school rejected her application for admission in 2008.

The first major challenge to affirmative action came more than a decade after the Civil Rights Act of 1964, when the Supreme Court ruled in 1978 that using formal racial quotas in college admissions decisions was unconstitutional, violating the Equal Protection Clause in the 14th Amendment. Subsequent decisions in 1996, 2001 and 2003 upheld and expanded that ruling by preventing colleges from adding a fixed, substantial number of points to admission scores based on race.

Another 2003 decision, Grutter v. Bollinger, allowed for the continued use of race as a component in admissions policies at colleges and universities, provided the component of race is narrowly tailored within the admission decision "to further a compelling interest in obtaining the educational benefits that flow from a diverse student body."

Monday's opinion from the Supreme Court does not rule on the constitutionality of the University of Texas' enrollment policy, nor does it overturn the ruling in Grutter v. Bollinger. But it does send a message on how narrowly tailored the value of race must be: "The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity," read the decision, written by Justice Anthony Kennedy. Only Justice Ruth Bader Ginsburg dissented from the group; Justice Elena Kagan recused herself, having been involved in the case as Solicitor General.

In 2008, less than 3.3 percent of the UT freshman class were Black or Latino students admitted through the program being challenged. The vast majority of the 1,713 Black and Latino freshman—nearly 26 percent of the freshman class—were admitted through race-blind admissions based on high-school class rank. The university adds that community service, work experience, extracurricular activities and awards are also part of the race-based affirmative-action plan.

The Fisher case was always more about a challenge to affirmative action than a challenge to her right to attend the university. A piece in ProPublica pointed out that while Fisher's GPA and SAT scores were good (not great), the school's rejection rate that year was higher than Harvard's, and even if Fisher had received points for race and other socioeconomic factors, her application for admission still would have been rejected.

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Lynching Memorial and Museum Opening Highlights America's Racist Past, Parallels Today's Killings of African Americans

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Hundreds of people lined up in the rain to experience a long overdue piece of American history and honor the lives lost to lynching at the National Memorial for Peace and Justice and the Legacy Museum in Montgomery Alabama on Thursday.

The Equal Justice Initiative, sponsor of this project, has documented more than 4,000 "racial terror" lynchings in the United States between 1877 and 1950.

The first memorial honoring the victims includes sculptures and art depicting the terror Blacks faced; 800 six-foot steel, engraved monuments to symbolize the victims; writings and words of Toni Morrison and Dr. Martin Luther King, Jr.; and a final artwork by Hank Willis Thomas capturing the modern-day racial bias and violence embedded in the criminal justice system and law enforcement.

Among memorial visitors were civil right activist Rev. Jesse Jackson and film director Ava Duvernay. According to the Chicago Tribune, Jackson said it would help dispel the American silence on lynchings, highlighting that whites wouldn't talk about it because of shame and Blacks wouldn't talk about it because of fear. The "60 Minutes Overtime" on the memorial just three weeks earlier was reported by Oprah Winfrey, who stated during her viewing of the slavery sculpture, "This is searingly powerful." Duvernay, quoted by the Chicago Tribune, said: "This place has scratched a scab."

The Montgomery Downtown business association's President, Clay McInnis, who is white, offered his thoughts to NPR in reference to his own family connection to the history that included a grandfather who supported segregation and a friend who dismantled it. "How do you reconcile that on the third generation?" he asked. "You have conversations about it."

A place to start: The Montgomery Advertiser, the local newspaper, apologized for its racist history of coverage between the 1870s and 1950s by publishing the names of over 300 lynching victims on Thursday, the same day as the memorial opening. "Our Shame: the sins of our past laid bare for all to see. We were wrong," the paper wrote.

The innumerable killings of unarmed Black men and the robbing of Black families of fathers, mothers, and children today not only strongly resemble the history of lynchings, but also bring up the discomfort and visceral reactions that many have not reckoned with.

Bryan Stevenson, founder of the Equal Justice Initiative and the man who spearheaded this project, told NPR: "There's a lot of conflict. There's a lot of tension. We're dealing with police violence. We deal with these huge disparities in our criminal justice system. You know, if everything was wonderful you could ask the question, 'Why would you talk about the difficult past?' But everything is not wonderful."

WFSA, a local news station, interviewed a white man who had gone to see the Legacy Museum downtown, also part of the EJI project, located at the place of a former slave warehouse. He talked about how he was overwhelmed by the experience and that "Slavery is alive in a new way today."

Reactions on social media were reflective of the memorial's power and the work that is continuing toward progress.

During a launch event, the Peace and Justice Summit, Marian Wright Edelman, activist and founder of the Children's Defense Fund, urged the audience to continue their activism beyond the day's events on issues like ending child poverty and gun violence, according to the Chicago Tribune: "Don't come here and celebrate the museum ... when we're letting things happen on an even greater scale."

Perhaps the reason to honor and witness the horrific experiences of our ancestors is to seal in our minds the unacceptable killings of Blacks today, and the work we ALL have to do now to stop repeating the past.

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