Penn Undergraduate Law Journal
  • Home
  • About
    • Mission
    • Masthead
    • Faculty Advisory Board
    • Partner Journals
    • Sponsors
  • Submissions
  • Full Issues
  • The Roundtable
    • Pre-Law Corner
  • Events
  • Contact
    • Contact
    • Apply
    • FAQs
  • Home
  • About
    • Mission
    • Masthead
    • Faculty Advisory Board
    • Partner Journals
    • Sponsors
  • Submissions
  • Full Issues
  • The Roundtable
    • Pre-Law Corner
  • Events
  • Contact
    • Contact
    • Apply
    • FAQs

The Roundtable


Welcome to the Roundtable, a forum for incisive commentary and analysis
on cases and developments in law and the legal system.


INTERESTED IN wRITING FOR tHE rOUNDTABLE?

The Looming Future of Affirmative Action

9/30/2015

0 Comments

 
Picture
By Luis Bravo

Luis Bravo is a freshman at the University of Pennsylvania.​
​
Amidst this summer’s series of momentous Supreme Court decisions, the most powerful judicial body in America dropped a bombshell: it will be revisiting the issue of affirmative action next term in the case of Fisher v. The University of Texas. [1] After a long chain of appeals, the case will come before the Supreme Court in 2016, giving the justices the opportunity to address the much-avoided topic that has inspired much fervor in the program’s supporters and dissenters alike.

The case revolves around Abigail Fisher, a Caucasian woman who sued The University of Texas after the admissions office rejected her undergraduate application in 2008. According to Fisher’s lawyers, a public university cannot legally use race as a factor in determining an applicant’s admission, claiming it violates the Equal Protection Clause of the Constitution, which prohibits preferential treatment on the basis of race. [2] The United States District Court first heard the case and ruled in favor of the University. Fisher appealed the case after this and subsequent rulings in favor of the university’s affirmative action program, eventually reaching the Supreme Court. It remanded the case to the Fifth Circuit Court of Appeals, which once again ruled in favor of the University’s admissions policy. Once more, Fisher appealed the case; however, since Fisher had already graduated from college, the University requested that the case be dismissed entirely.  The request was denied, as the Supreme Court announced this past June that it would add Fisher v. The University of Texas to their docket. [3]
This case is but the most recent addition to the historical legal discourse surrounding affirmative action. Legally, affirmative action is defined as “a set of procedures designed to eliminate unlawful discrimination between applicants, remedy the results of such prior discrimination, and prevent such discrimination in the future.” [4] Although various efforts have been made throughout history with the same goals as affirmative action, President Kennedy first introduced the modern affirmative action program itself in 1961 through Executive Order No. 10925, which was reinforced by President Johnson’s 1965 Executive Order No. 11246. Since the 1960s, these executive orders have been supplemented by additional provisions meant to expand the anti-discriminatory policy to other vulnerable populations, such as women and veterans. The invention and evolution of affirmative action policies inspired the creation of federal programs like the Office of Federal Contract Compliance to ensure that the mandates of affirmative action were properly executed. [5]

Supporters of affirmative action view the program as a vital necessity and praise its efforts to increase diversity in the workplace, the classroom, and beyond. Without such programs in place, the disparities between the majority and minority populations would only increase. In fact, states that lack affirmative action programs have been proven to have a significantly wide achievement gap between demographic cohorts. Florida, for example, is one of the states that has banned affirmative action and has subsequently seen a significant drop in the admission rates of black students to colleges over the past ten years. For example, at Florida State University, there is a shocking seventeen point difference in acceptance rates between whites and blacks. [6] Similar patterns pervade the public school systems in states such as Michigan and Washington. Supporters of affirmative action understand the policy as a necessary weapon in the larger fight to compensate for decades of institutional racism and institutionalized inequality by creating the chance for minorities to gain the opportunities they have been denied for centuries.

The opposition to affirmative action, however, views the provisions as discriminatory and unnecessary. They believe that individuals should be rewarded on the basis of individual merit, evaluated on the skills they posses and not on the basis of their race. Therefore, they view any preference given to an individual based on their ethnic background as inherently unfair. [7] Additionally, critics believe that by adopting affirmative action programs into institutions such as those for higher education, universities thereby perpetuate the culturally ingrained lower standards of learning for minorities. In their view this lowers the standards for admission, therefore leading to the admission of students who are unprepared to meet the demanding academic rigor of higher education.  More importantly, much of the opposition views affirmative action as harmful to minorities, because it attaches them with a stigma where their merit is inherently called into question upon their admission. In their opinion, success attained through affirmative action is not the same as, and deserves less respect than, success gained by qualities such as hard work and perseverance. There are, however, many critics that view provisions such as affirmative action as necessary, but believe that the current methods do not address the problems of discrimination in the best way. One such critic is Republican presidential candidate Ben Carson, who advocates for a program titled “Compassionate Action.” Under this program, people would continue to receive preferential treatment, but instead of the preference being based upon race, it would be based upon an individual’s circumstances, viewed holistically. [8]

Some states, such as Michigan, have already repealed affirmative action after the majority of the population voted against the provisions. The Supreme Court, in a 6-2 decision, (as Justice Elena Kagan recused herself because of her prior involvement with the case) later upheld their decision on the basis that policies involving preferential discrimination should be decided in the ballot boxes rather than in the courtroom. The Michigan decision represented a turning point in the legal discourse surrounding affirmative action, for prior to this case, the Supreme Court had vehemently supported affirmative action. [9]

Now the provisions that have aided minorities and other vulnerable communities stand at a crossroad. Affirmative action could pose an interesting conundrum, because institutions should promote equality, and not give any  individual preferential treatment, especially on the basis of a factor as uncontrollable as race. However,this perspective relies upon the notion that people of all races are provided equal opportunities and have equal access to resources, which has been empirically proven to be obscenely far from the truth. The fate of affirmative action, and the shape of anti-discrimination laws remains uncertain; hopefully, 2016 will bring a definitive interpretation of the Equal Protection Clause that will shed new light on the issue of equality in America.


[1] De Vogue, Ariane. "Supreme Court to Hear Major Affirmative Action Case next Term." CNN Politics. June 29, 2015. Accessed September 18, 2015. http://www.cnn.com/2015/06/29/politics/supreme-court-affirmative-action-case-granted
[2] "FISHER v. UNIVERSITY OF TEXAS AT AUSTIN." Legal Information Institute. Accessed September 18, 2015. https://www.law.cornell.edu/supremecourt/text/11-345
[3] Liptak, Adam. "Supreme Court to Weigh Race in College Admissions." The New York Times. June 29, 2015. Accessed September 18, 2015. http://www.nytimes.com/2015/06/30/us/supreme-court-will-reconsider-affirmative-action-case.html
[4] "Affirmative Action." Legal Institution Institute. Accessed September 18, 2015. https://www.law.cornell.edu/wex/affirmative_action
[5] "Affirmative Action." Civil Rights 101. Accessed September 18, 2015. http://www.civilrights.org/resources/civilrights101/affirmaction.html
[6] "How Minorities Have Fared in States With Affirmative Action Bans." The New York Times. June 23, 2013. Accessed September 18, 2015. http://www.nytimes.com/interactive/2013/06/24/us/affirmative-action-bans.html
[7] Sacks, David. "The Case Against Affirmative Action." Stanford Magazine. Accessed September 18, 2015. https://alumni.stanford.edu/get/page/magazine/article/?article_id=43448
[8] "Dr. Ben Carson: We Need Compassionate Action, Not Affirmative Action." Fox News. February 19, 2014. Accessed September 18, 2015. http://www.foxnews.com/on-air/on-the-record/2014/02/20/dr-ben-carson-we-need-compassionate-action-not-affirmative-action
[9] Liptak, Adam. "Court Backs Michigan on Affirmative Action." The New York Times. April 22, 2014. Accessed September 18, 2015. http://www.nytimes.com/2014/04/23/us/supreme-court-michigan-affirmative-action-ban.html

​Photo Credit: Flickr User Derek Key 

The opinions and views expressed through this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.
0 Comments

Your comment will be posted after it is approved.


Leave a Reply.


    Categories

    All
    Akshita Tiwary
    Alana Bess
    Alana Mattei
    Albert Manfredi
    Alexander Saeedy
    Alexandra Aaron
    Alexandra Kanan
    Alice Giannini
    Alicia Augustin
    Alicia Kysar
    Ally Kalishman
    Ally Margolis
    Alya Abbassian
    Anika Prakash
    Anna Schwartz
    Ashley Kim
    Astha Pandey
    Audrey Pan
    Benjamin Ng'aru
    Brónach Rafferty
    Bryce Klehm
    Cary Holley
    Christina Gunzenhauser
    Christine Mitchell
    Christopher Brown
    Clarissa Alvarez
    Cole Borlee
    Connor Gallagher
    Dan Spinelli
    Dan Zhang
    David Katz
    Davis Berlind
    Derek Willie
    Dhilan Lavu
    Edgar Palomino
    Edna Simbi
    Emma Davies
    Esther Lee
    Evelyn Bond
    Filzah Belal
    Frank Geng
    Gabriel Maliha
    Georgia Ray
    Graham Reynolds
    Habib Olapade
    Hailie Goldsmith
    Haley Son
    Harshit Rai
    Henry Lininger
    Hetal Doshi
    Iris Zhang
    Irtaza Ali
    Isabela Baghdady
    Ishita Chakrabarty
    Jack Burgess
    Jessica "Lulu" Lipman
    Joe Anderson
    Jonathan Lahdo
    Jonathan Stahl
    Joseph Squillaro
    Justin Yang
    Kaitlyn Rentala
    Kanishka Bhukya
    Katie Kaufman
    Kelly Liang
    Keshav Sharma
    Ketaki Gujar
    Lauren Pak
    Lavi Ben Dor
    Libby Rozbruch
    Lindsey Li
    Luis Bravo
    Lyndsey Reeve
    Madeline Decker
    Maja Cvjetanovic
    Maliha Farrooz
    Marco DiLeonardo
    Margaret Lu
    Matthew Caulfield
    Michael Keshmiri
    Mina Nur Basmaci
    Muskan Mumtaz
    Natalie Peelish
    Natasha Darlington
    Natasha Kang
    Nayeon Kim
    Nicholas Parsons
    Nicholas Williams
    Nicole Greenstein
    Nihal Sahu
    Omar Khoury
    Owen Voutsinas Klose
    Owen Voutsinas-Klose
    Pheby Liu
    Rachel Bina
    Rachel Gu
    Rachel Pomerantz
    Rebecca Heilweil
    Regina Salmons
    Sajan Srivastava
    Sandeep Suresh
    Sanjay Dureseti
    Sarah Simon
    Saranya Das Sharma
    Saranya Sharma
    Sasha Bryski
    Saxon Bryant
    Sean Foley
    Sebastian Bates
    Serena Camici
    Shahana Banerjee
    Shannon Alvino
    Shiven Sharma
    Siddarth Sethi
    Sneha Parthasarathy
    Sneha Sharma
    Sophie Lovering
    Steven Jacobson
    Suaida Firoze
    Suprateek Neogi
    Takane Shoji
    Tanner Bowen
    Taryn MacKinney
    Thomas Cribbins
    Todd Costa
    Tyler Larkworthy
    Vatsal Patel
    Vikram Balasubramanian
    Vishwajeet Deshmukh
    Wajeeha Ahmad
    Yeonhwa Lee

    Archives

    January 2023
    December 2022
    November 2022
    September 2022
    June 2022
    March 2022
    February 2022
    January 2022
    December 2021
    November 2021
    May 2021
    April 2021
    March 2021
    February 2021
    January 2021
    December 2020
    November 2020
    October 2020
    July 2020
    June 2020
    May 2020
    April 2020
    March 2020
    February 2020
    December 2019
    November 2019
    October 2019
    September 2019
    August 2019
    July 2019
    May 2019
    April 2019
    March 2019
    January 2019
    December 2018
    November 2018
    October 2018
    September 2018
    August 2018
    July 2018
    June 2018
    May 2018
    April 2018
    March 2018
    February 2018
    December 2017
    November 2017
    October 2017
    August 2017
    July 2017
    May 2017
    April 2017
    March 2017
    February 2017
    January 2017
    December 2016
    November 2016
    October 2016
    September 2016
    August 2016
    July 2016
    June 2016
    April 2016
    March 2016
    February 2016
    December 2015
    November 2015
    October 2015
    September 2015
    August 2015
    July 2015
    June 2015
    May 2015
    April 2015
    March 2015
    February 2015
    November 2014
    October 2014
    August 2014
    July 2014
    June 2014
    May 2014
    April 2014
    March 2014
    December 2013
    November 2013
    October 2013
    September 2013

Picture
Picture
​