Supreme Court to rule on Affirmative Action

The US Supreme Court is set to hand down its ruling on an Affirmative Action case which may impact parents with teens heading to college in the near future.

WASHINGTON, DC, June 27, 2012 - In addition to a ruling on the constitutionality of the Affordable Healthcare law ( Obamacare) law tomorrow,  the United States Supreme Court is also set to hand down a ruling on an Affirmative Action case which may impact parents with teens heading to college in the near future.

An Anglo-Saxon white female student who was rejected admission into the University of Texas argued 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 as 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 operated under that program until 2008 when Fisher sued after she was denied admission.

There are up to several dozen factors that each school use to determine who gets admitted and it’s easy for those who get rejected to point to race and use that as a basis for a judicial challenge.  And that’s what happened here.

Fisher claims that the Affirmative Action policy at the University of Texast has become a racial quota system. The dissenting judge in the case below noted 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.

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 from the case.

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 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.

Affirmative Action programs will not necessarily 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.

The sad part, perhaps, is no matter how it turns out, there are many people out there who will assume most people of color with higher education degrees could not have gotten into college on their merit and scholastic scores alone. Even though they would be among the mere 35% of Americans with college degree, they will be presumed by some as Affirmative Action admits who were really not qualified to get into college on their merit and must be taking the spot of a white person. Even if they got into school based on merit alone, some people will automatically lump them in with other Affirmative Action admits.

That’s just lazy thinking.

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Jeneba Ghatt
Jeneba Jalloh Ghatt is a former journalist turned lawyer turned citizen journalist. Currently, she manages her boutique communications law firm, where she has represented small businesses and nationally-recognized civil and consumer rights organizations before the United States Supreme Court, federal courts and the FCC. She also covers the White House and US Congress for the online news site while authoring her own influential blog which is frequently accessed by top policy makers and think tanks, and the investment community. focuses on the intersection of politics and technology and reports on policies and rules in the communications and tech sector.
Before opening her law firm, The Ghatt Law Group, which was the first communications firm owned by women and minorities, Jeneba regulated Comcast and Starpower as the Assistant General Counsel for the District of Columbia's Office of Cable Television and Telecommunications, and at one point was the only communications regulatory attorney in the entire city. She is founding member and policy chair for a new trade association, the National Association of Multicultural Digital Entrepreneurs and provides advice and counsel to new businesses in the tech industry, particularly small businesses owned by women and minorities.

Born in Sierra Leone, West Africa, but raised in the United States by her Catholic mom and Muslim dad, she started her college career creating web content for one of the earliest websites in history while working part time for the University of Maryland's Office of Technology. Following her graduation from the Catholic University of America, Columbus School of Law, she founded and co-wrote one of the earliest blogs and since then has gone on to found and author six different widely read and influential blogs. She was one of only 22 writers and bloggers to attend the first White House summit for African American media.
She holds a Certificate in Communications Law Studies from Catholic; a Juris Doctor from there as well, and a Master of Law in advocacy degree from the Georgetown University Law Center where she first taught and lectured as a Staff Attorney and Graduate fellow at that law school's Institute for Public Representation. She later went on to teach Media Law at the University of Maryland at College Park and guest lecture at Yale Law School and Penn State University, College of Telecommunications. She is well skilled and versed with social media and manages several Twitter, Facebook, Linked In accounts and groups.
She sits on the board of several non profits and trade associations.

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