10:00pm February 21, 2012

Affirmative Action Apocalypse?


Not surprisingly, the United States Supreme Court has decided to take up an appeal of a White female student rejected admission into the University of Texas law school.  She argues that African American and Hispanic students with inferior credentials were admitted over her using via the school’s Affirmative Action plan.

This case, Fisher v. University of Texas, was a follow up to the last Texas Affirmative Action case the 5th Circuit Court of Appeals decided known as Hopwood v. Texas.  In that 1996 case, the Court ruled the school system’s Affirmative Action program was not narrowly tailored enough to meet a compelling state interest and then overruled a diversity admission policy at the law school.  It stated the school could not use race as a factor in admission decisions.

To get around that decision and do its part to increase Black and Latino admissions, the University of Texas system opted on a plan to admit the top 10 percent of all high schools. That move caused minority student admissions to jump 21 percent.

However, when the US Supreme Court took up Affirmative Action in 2003 through Grutter v. Bollinger, the majority stated that diversity is an interest that schools can and should promote so long as they meet the strict standard: that its policy was narrowly tailored to meet the compelling interest in diversity promotion.

After that case, Texas expanded its Affirmative Action efforts beyond just the top 10% and started taking into account diversity when making admission decisions. It’s been operating under that program until 2008 when Fisher sued after denied admission.

She claims the schools’ Affirmative Action policy has become more like a racial quota. That is what the dissenting judge stated in the case below – that use of a racial animus opens the door to numerical admission based on race alone. But, that was the minority opinion. Fisher managed to push her case up the ladder and was granted a review by the Supreme Court this week.

What will stand out this round is that the Supreme Court that heard the University of Michigan case, thereby empowering Texas to change its policy back then, is not the current court of 2012 which is dominated by conservatives, 5-4.

It gets even more complicated because Justice Elena Kagan, who was the solicitor general in the case below, has recused herself.

That maneuver stacks the court with even more conservative Justices, increasing the odds that Affirmative Action may be struck down in its entirety or, at the least, in more extreme ways than before. Justices John RobertsAntonin ScaliaClarence Thomas and Samuel Alito have previously taken anti-Affirmative Action stances in prior decisions.  Justices Sonia SotomayorRuth Bader Gingsburg and Stephen Breyer are more liberal and are more likely to uphold the Texas Affirmative Action program.  Hence, this decision will hinge on Justice Anthony Kennedy, who under the current make up of the court has become the “swing” vote, though he’s voted with the conservative wing 63% of the time since 2010.  However, he occasionally sides with the liberal wing according to the SCOTUS Blog.

It’s worth noting that Kennedy has voted against  Affirmative Action in the past. In 1989, he voted in City of Richmond v. J.A. Croson Co. against federal contractors setting aside 30% of contracts for African Americans.  Also that year, he voted with the majority to allow disgruntled White workers in Martin v. Wilks to challenge Affirmative Action settlements. That same year, he also voted in Wards Cove Packing v. Atonio which challenged numerical underutilization of women or minorities.

Several groups have filed amicus briefs in this potentially landmark case.

It’s not to say that this will mean that Affirmative Action programs will be automatically ruled unconstitutional, per se.  But, the court may look to Texas’ Affirmative Action program, invalidate it, and possibly set up a higher bar for other colleges and universities to climb in order to use race in admission.

Such a move could, in effect, invalidate all government Affirmative Action programs nationwide.

Conservative think tanks are watching and hoping this will be the year that Affirmative Action goes by the wayside permanently.  And it’s one more perfect hot button issue for the elections, just in time to see if the first Black president gets re-elected.

About the Author

Jeneba Ghatt
Jeneba Jalloh Ghatt represents small, women, and minority owned business and technology companies at The Ghatt Law Group LLC, the nations’ first communications law firm owned by women and minorities. She's won landmark cases on behalf of her clients which include national civil rights and public interest organizations. In addition to actively authoring several blogs, being a radio show host and sitting on the boards of three non-profits, she is a tech junkie who has been developing online web content since the very early years of the Internet, 1991 to be precise! Follow her on Twitter at @Jenebaspeaks, on her blog, Jenebaspeaks, which covers the intersection of politics and technology or on her Politics of Raising Children blog at The Washington Times Communities section. The ideas and opinions expressed in this article are solely those of the author, and have complete editorial independence from any Politic365 partners, sponsors, or advertisers. For additional information about Politic365, please visit http://politic365.com/about/.


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  1. I for one think do not like the term "White." I much more prefer the term "European-American." Like most U.S. citizens, my ancestry is European. I am of German, Italian, Irish and English ancestry. So my skin is white colored. U.S. citizens of African ancestry are called "African-American" and U.S. citizens of Hispanic ancestry are called "Hispanic-American," and so on. But us U.S. citizens of European ancestry are just called "White." That's not fair. The only place where the term "European-American" is commonly used is in academica. My people also have a heritage and a history. My people came from Europe. Please call us "European-American" and not "White." Thank you.

  2. AmericanMe

    First, the terms "White" is used twice in this piece.

    Second, it does not appear that plaintiff in this case (the first instance) has shared her ancestry; and neither all the potential people who may bring a claim challenging an Affirmative Action settlement (the second instance), how can the author assume they are European American? They may not claim their European heritage, may have been white Hispanics or White Arab mix and born and raised here and thus would not be "European heritage".

    White incorporates a broader group in THIS particular case. This is a news site not an academic journal. Do you go around to all websites mentioning the term "White" as a race and demand they change their language? Just curious.

  3. [...] Without minority contracting programs Atlanta would not be the city it is today.  Generations of businesses and businesspeople demonstrate the success of the programs here.  The Atlanta model for economic diversity became the blueprint for many other places including the federal government.  While the members of the US Supreme Court weigh the merits of this affirmative action suit from Texas, they ought to be cognizant of Atlanta and the others places where affirmative action has succeeded and not just default to their usual conservative or liberal stances as explained in Jeneba Ghatt’s blog post  “Affirmative Action Apocalypse?” [...]

  4. Beethoven

    "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 more crowded than 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."

  5. Beethoven

    "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."

  6. Ronald Arnold


    We can't have Whites dominating their own governments and corporations in their own countries, because that would be racist and we must have affirmative action to fight it.

    Pro White:

    No one says Indians, Chinese, Japanese, Africans, etc, should fight the “privilege” of their own race in government and private sectors in their own countries.

    “Anti-racists” only combat this kind of “privilege” in White nations.

    Anti-racist is a codeword for anti-White.

  7. Ronald Arnold

    Race is a social construct is nothing new. Nobody talks about “Chinese privilege” in China. Nobody talks about “Haitian privilege” in Haiti. Nobody talks about “Japanese privilege” in Japan. Nobody talks about “Somalian privilege” in Somalia.

    Anti-racists talk about “White privilege” in White nations, ONLY White nations. They say they are anti-racist. What they are is anti-White.

    Antiracist is a codeword for anti-White.

  8. Ronald Arnold

    My race, the White race demands a free and open public discussion regarding the attempt to turn ALL our countries Brown.

    Anti-whites like to say Diversity is “freedom” for non-Whites to enter White living space and “mix in” with whomever they wish.

    However, White people are not allowed to refuse this freedom, so it is the anti-whites diversity we are FORCED to accept.

    It's geNOcide, White geNOcide.

    “Genocide involves the attempt to achieve the disappearance of a group by whatever means. It does not have to be violent, it could be a combination of policies that would lead to a certain group dying out.”

    — Malcolm Fraser (Prime Minister of Australia 1975-1983)

    Anti-racism is a codeword for anti-White.

  9. JohnMichael

    Nobody is saying that Africa needs diversity.
    Nobody is saying that Asia needs diversity.
    They are already 100% diverse.
    People are only telling White children in White countries that they need diversity.
    White Countries will be 100% diverse when there are no White people left.
    Diversity is a code-word for White genocide; anti-racist is a code word for anti-White.

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  11. [...] we wrote before, it should be remarkable which Justices John Roberts, Antonin Scalia, Clarence [...]

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