The Looming Future of Affirmative Action

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.