Escamilla, Poneck & Cruz, LLP Affirmative Action in the Context of Higher Education The Potential Impact of Fisher v. University of Texas at Austin Escamilla, Poneck & Cruz, LLP

What is Affirmative Action? “Positive steps taken to increase the representation of women and minorities in area of employment, education, and business from which they have been historically excluded and/or rectify past discrimination.” Source:http://plato.stanford.edu/archives/spr2005/entries/affirmative-action/

What is Affirmative Action? The 14th Amendment paved the way for affirmative action (1868) Forbade states from creating laws that infringed upon the rights of U.S. citizens, denied citizens the equal protection of the laws as well as life, liberty or property without due process.

Defining Affirmative Action “Equal Protection” not so easy to define. . . 14th Amendment Plessy v. Ferguson (1890) leading to constitutionality of segregation and “separate but equal”

Defining Equal Protection Many laws discriminate – if you have to be 18 to vote, it discriminates against young people Highest level applies “strict scrutiny” to laws that discriminate on the basis of race or national origin The concept of “Strict Scrutiny” emerged in the post-Plessy years.

Defining Equal Protection To pass strict scrutiny, the law or policy must satisfy three tests: Compelling Governmental Interest - something necessary or crucial. Narrowly Tailored – the law must be narrowly tailored to achieve that goal. If the law is overbroad or fails to address the compelling interest, the law is not properly considered “narrowly tailored”. Least Restrictive Means - The law must be the least restrictive means to achieve the compelling interest.

Defining Equal Protection 14th Amendment through mid1950s Equal Protection but not absolute Separate but Equal Strict Scrutiny Brown v. Board of Education

Defining Equal Protection Brown v. Board of Education of Topeka 1954 – Case argued by NAACP/Thurgood Marshall Legally mandated segregation in public schools was unconstitutional under the Fourteenth Amendment’s equal protection clause "We conclude that the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal." —Chief Justice Earl Warren When are we getting to Affirmative Action?

Defining Equal Protection Brown v. Board of Education of Topeka Brown v. Board, Supreme Court ordered integration of segregated American public schools "with all deliberate speed“ Organized resistance to integration (think Little Rock, closing of VA public schools, Ruby Bridges) Rapid emergence of private schools Slow pace gave rise to Civil Rights Movement, but also groups in support of “Affirmative Action”

What is Affirmative Action? Executive Order 10925 March 6, 1961 - President John F. Kennedy issued Executive Order 10925 Government contractors must "take affirmative action to ensure that applicants are employed, and employees are treated during employment, without regard to their race, creed, color, or national origin." The intent was to affirm the government's commitment to equal opportunity for all qualified persons, and to take positive action to strengthen efforts to realize true equal opportunity.

What is Affirmative Action? 1964 – Civil Rights Act – Prohibiting employment discrimination 1965 - President Lyndon B. Johnson issued Executive Order 11246, prohibiting employment discrimination based on race, color, religion, and national origin by those organizations receiving federal contracts and subcontracts. 1967, President Johnson amended the order to include sex on the list of attributes. Requires federal contractors to take affirmative action to promote the full realization of equal opportunity for women and minorities.

What is Affirmative Action? Higher Education - 1979 In Regents of the University of California v. Bakke, the Supreme Court splits down the middle on the issue of racial preferences. Four justices state that race cannot be used as a factor in admissions Another four say it can Justice Lewis Powell -- issues a controlling opinion, which rejects the medical school's two- track admissions system, but suggests that some consideration of race might be appropriate to achieve "diversity."

Bakke’s Splintered Court Affirmed the judgment ordering Bakke's admission to the medical school Invalidated the school's special admissions program. Did not prohibit the school from considering race as a factor in future admissions decisions.

What is Affirmative Action? Employment Setting 1979 United Steel Workers of America, AFL-CIO v. Weber (1979) whether Title VII forbids private employers from voluntarily agreeing upon affirmative action plans that accord racial preferences Race-conscious affirmative action efforts designed to eliminate a conspicuous racial imbalance in an employer's workforce resulting from past discrimination are permissible if they are temporary and do not violate the rights of white employees.

What is Affirmative Action? Employment Setting - 1980 Fullilove v. Klutznick (1980) Minority set-aside program was a legitimate exercise of congressional power, Five separate opinions (most joining Plurality decision was three Justices) Eventually overruled by Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (1995).

What is Affirmative Action? Employment 1993 Billish v. City of Chicago, 989 F.2d 890, 893 (7th Cir.1993) “The equal protection clause forbids states to give preference to persons on the basis of their race” The Supreme Court has, however, carved an exception when discrimination against whites is necessary to rectify previous discrimination in their favor committed by the state agency that is seeking to practice remedial discrimination.... [W]e must consider whether the [state agency] ever discriminated unlawfully in favor of whites [but] also whether, if so, the curative measures taken ... have been carefully designed to avoid unnecessary injury to white persons.

Affirmative Action Decisions 1978-79 Supreme Court Interpretation Affirmative Action – Employment vs. Education Employment Context Remedial Addressing Past Discrimination Temporary Do not violate the rights of white employees Higher Education Context Splintered decision Setting aside specific number of places absent Past Discrimination Prohibited Obtaining a "diverse" student body a compelling goal Supreme Court Affirmative Action Decisions 1978-79

Affirmative Action Education 1996 Hopwood v. Texas Four Caucasian students denied admission to University of Texas Law School challenged on 14th Amendment grounds US Court of Appeal for Fifth Circuit found in favor of Plaintiff Unconstitutional to consider race or ethnicity to achieve a diverse student body.

Affirmative Action - 1996 California voters pass the California Civil Rights Initiative, also known as Proposition 209, a state constitutional amendment that bans preferential treatment based on race, sex, color, ethnicity or national origin in the operation of public employment, education or contracting.

Affirmative Action - 1997 The Supreme Court refuses to hear a challenge to Proposition 209, thus letting a Court of Appeals decision upholding the constitutionality of California's ban on preferential treatment.

Affirmative Action - 1998 Washington state voters pass Initiative 200, similar to Proposition 209.

Affirmative Action – 2000 Smith v. University of Washington Law School Caucasian student denied admission filed suit alleging discriminatory admissions policies. Ninth Circuit Court of Appeals was of opinion that student boy diversity was a compelling state interest (relying on language in Bakke)

Affirmative Action- 2000 Florida bans racial preferences in state college admissions, opting for a plan that admits to the University of Florida system all students who complete a college preparatory curriculum and graduate in the top 20 percent of their high school class.

Affirmative Action – 2001 Johnson v. University of Georgia Board of Regents Three Caucasian students denied admission filed suit alleging discriminatory admissions policies, claiming minority applicants were given extra “points” in admission process due solely to their racial status. Eleventh Circuit Court of Appeals stated that this policy was unconstitutional because it mechanically awarded diversity bonuses. “Not sufficiently tailored”

Affirmative Action Michigan Cases 2002 – 6th Circuit Gratz v Bollinger (undergraduate) Grutter v. Bollinger (law)

Affirmative Action - 2002 The Supreme Court agrees to hear Grutter v. Bollinger, in which the University of Michigan Law School is accused of holding white applicant Barbara Grutter to a different and higher standard than minority applicants are held. The Court also agreed to hear a companion case, Gratz v. Bollinger, which deals with undergraduate admissions at Michigan.

Gratz v. Bollinger Challenge to Undergraduate Admission Policy System awarded points to minority applicants solely on the basis of their races. Plaintiffs challenged under Title VI as EPC of the 14th Amendment Supreme Court of view that student body diversity was a compelling state interest but the automatic point system not sufficiently narrowly tailored.

Grutter v. Bollinger Plaintiff complained that law school affirmative action policy favored minority applicants unconstitutionally (14th Amendment) and in conflict with Title VI Law School used race as one of many but unquantified factors Diversity is a compelling state interest Process sufficiently narrowly tailored

Affirmative Action Summary Circa 2003 Diversity in a critical mass is a compelling state interest in the context of higher education Quotas – no good; mechanical no good; no separate tracks To withstand constitutional scrutiny must have meaningful individualized review May be undertaken only after admission officers have made good faith considerations of nonracial alternatives Must not unduly burden non-minorities Must be of limited duration

Affirmative Action – Take Aways from Michigan Cases “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

Affirmative Action – Take Aways from Michigan Cases Kennedy wrote that a racial quota “can be the most divisive of all policies, containing within it the potential to destroy confidence in the Constitution and in the idea of equality.” Yet at the same time he said race might also play a role as a “modest factor among many others.”

Big State U.’s Undergraduate Admissions Policy Does this Fly? Top 10% of in state high school class are automatically admitted (“top ten program”) Top Ten program – a race neutral approach contributes meaningfully to ethnic/racial diversity on campus (fills 20% of class) Remaining offers based on academic index and “Personal Achievement Index”

The Future of Affirmative Action “Is Supreme Court set to end use of race in admissions?” SOURCE: NBCNews.com

Can we Predict Fisher? What could happen? Uphold Texas OUA policies Strike down Texas OUA policies Clarify Grutter Overturn Grutter Combination of the above

Affirmative Action Fisher - 2012 Surprising decision to hear the case set off “a lot of consternation” among colleges May be difficult to show race-conscious admissions policy is necessary to meet a compelling interest in reaching a critical mass of diversity, given the significant minority representation already achieved through use of the top 10% program. UT has made a persuasive case that its use of race in its admissions policy meets the test of Grutter and Bakke for holistic review in which race is only one factor of many in an individualized evaluation of each student.

Can we Predict Fisher? Make up of the current Supreme Court Roberts, Alito, Scalia, Thomas (known to oppose AA) Kennedy (walks the line) Ginsburg, Soto-Mayor, Breyer Kagan – has recused herself Supreme Court deference to higher education Public Policy – 75+ Amicus Briefs filed on behalf of UT; Approximately 20 filed on behalf of Fisher

Fisher – Oral Arguments Critical Mass v. Quota? How do schools determine what is diverse enough to count as a ‘plus’ factor Can we use socio-economic status as a substitute?