Affirmative Action Controversy in the United States

Affirmative Action Controversy

From its beginnings in the United States in the 1960s, affirmative action has been highly controversial. Critics charge that affirmative action policies, which give preferential treatment to people based on their membership in a group, violate the principle that all individuals are equal under the law. These critics argue that it is unfair to discriminate against members of one group today to compensate for discrimination against other groups in the past. They regard affirmative action as a form of reverse discrimination that unfairly prevents whites and men from being hired and promoted.

Advocates of affirmative action respond that discrimination is, by definition, unfair treatment of people because they belong to a certain group. Therefore, effective remedies must systematically aid groups that have suffered from discrimination. Supporters contend that affirmative action policies are the only way to ensure an integrated society in which all segments of the population have an equal opportunity to share in jobs, education, and other benefits. They argue that numerical goals for hiring, promotions, and college admissions are necessary to integrate fields traditionally closed to women and minorities because of discrimination. (1)

In this Section:

Affirmative Action,
Affirmative Action Debate,
Affirmative Action Legislation and Supreme Court Rulings, and
Affirmative Action Developments.

Fisher v. University of Texas: Affirmative Action Debate and the Reverse Discrimination

By Margaret M. Russell. She is a professor at Santa Clara University School of Law.

The surprisingly lopsided majority opinion, authored by Justice Kennedy, ruled in favor of Abigail Fisher, a white student who had been rejected by the University of Texas (UT) in 2008. All but Justice Ruth Bader Ginsburg (with a recusal by Justice Elena Kagan) agreed to reverse the Fifth Circuit’s affirmance of the District Court’s grant of summary judgment, and remand the case back to the district court. The practical effect of the decision on the affirmative action program of UT (as well as those of other public colleges and universities) is to require specific evidence that the university’s use of race as a factor in admissions is “necessary” because there is no race-neutral alternative by which to achieve the diversity it seeks. The majority opinion ruled that the Fifth Circuit had incorrectly applied the “narrow tailoring / necessary means” requirement of the strict scrutiny test; Justice Ginsburg dissented and would have upheld the University’s program.

In this sense, the majority opinion can correctly be described as a narrow ruling and a partial victory for both opponents and proponents of affirmative action. The “headline news” of Fisher, of course, is what the majority opinion did not do: by not overruling the “compelling interest in diversity” rationale of Grutter (2003) and Bakke (1978), it bespeaks a situational respect for precedent and for deference to a university’s choice to pursue diversity in admissions as its “compelling” goal. For now, public colleges and universities may continue to consider race as a factor in achieving that goal.

The prospects for long-term continuation of affirmative action programs, however, remain tenuous. The majority opinion’s rejection of the UT’s defense brings to mind scholar Gerald Gunther’s famous description of strict scrutiny as “strict in theory, fatal in fact.” Justice Thomas’s concurrence states that he would overrule Grutter, and Justice Scalia’s concurrence suggests a similar result if an appropriate case presents itself. The grant of certiorari in Schuette v. Coalition to Defend Affirmative Action may very well present that case. If so, the ghosts of “SCOTUS-mas” past do not portend well for the future of affirmative action.

Resources

Notes and References

Encarta Online Encyclopedia

Affirmative Action Controversy

Affirmative Action Controversy in the United States