This blogtext gets its basis from a recent opinion of the Supreme Court of the United States. Last year the Supreme Court ruled in a case called SFFA v. Harvard, which has to do with affirmative action, i.e positive discrimination. Just to give you a very brief summary of it, in Harvard case the Supreme Court ruled that institutions of higher education must treat university applicants based on their experiences as individuals, instead of treating them as representatives of their race and giving them benefits because of their race. In other words, the Supreme Court ruled that the Constitution of the United States does not tolerate race-based benefits to ethnic minorities from universities.
The latest remarkable case before the Harvard case in the context of affirmative action was the Fisher v. University of Texas at Austin case. There are actually two Fisher cases, to be exact. Both of these cases have to do with the same course of events. Just to inform those who are not so familiar with the US Justice System, this kind of double processing in the Supreme Court is not normal. Instead, it is very unusual. However, the juridical question was a bit different in both of these cases here.
In the Fisher I case, the question was whether the Texas University’s use of race in the admission process was consistent with the Fourteenth Amendment of the US Constitution or not. This Amendment includes the Equal Protection Clause, which basically prohibits individuals, in general, to be treated differently on account of their race or ethnicity. Now, Texas University wasn’t using race in its admissions process in terms of directly giving applicants points, or numerical value, as it stands in the Opinion of the Court. However, it was still trying to increase racial minority enrollment on campus and thus, took ethnicity into account in the admission process. The petitioner had applied for admission to Texas University and had been rejected. She alleged that the University of Texas violated the Equal Protection Clause by considering race in the admission process. The Supreme Court discussed the matter in light of its earlier cases and decisions addressing the question of racial minority being a positive factor in universities’ admissions processes. Cases Regents of the University of California v. Bakke and Grutter v. Bollinger were important cases in this regard. The most essential conclusions from these cases were that ” the attainment of a diverse student body … is a constitutionally permissible goal for an institution of higher education”, ”any racial classification must meet strict scrutiny” and ”classifications are constitutional only if they are narrowly tailored to further compelling governmental interests”. In the Fisher I case, the Supreme Court basically endorsed these conclusions. However, it didn’t actually take a position on the constitutionality of Texas University’s admission process. Instead, it just set forth the controlling principles for the Court of Appeals. These three controlling principles were: 1. ” Race may not be considered [by a university] unless the admissions process can withstand strict scrutiny ” 2. “ the decision to pursue ‘the educational benefits that flow from student body diversity’ … is, in substantial measure, an academic judgment to which some, but not complete, judicial deference is proper ” 3. ” no deference is owed when determining whether the use of race is narrowly tailored to achieve the university’s permissible goals ”. Court of Appeals then determined that the admission process in question conformed with those controlling principles, in other words, strict scrutiny.
In the Fisher II case, the Supreme Court took a position specifically on the admission process of Texas University and its constitutionality. It considered the case in light of principles that it set forth in the Fisher I case. This Fisher II case, was decided by a 4-3 vote, so the opinions of the judges varied significantly compared with Fisher I case. One could think that the opinion should have been unanimous, or at least almost unanimous, because the Fisher I case was decided by 7-1 vote. Nevertheless it was not. The majority considered that the Texas University had articulated concrete and precise goals for their admissions policy, basically by aiming at a diverse student body, which then would benefit the academic community with creative ideas from different cultures et cetera. This is very important for acceptability of using affirmative action in student admissions. The majority also considered, unlike the petitioner, Fisher, that Texas University had not attained its goals in terms of ethnic diversity by its usual application processes. This viewpoint was proven by statistics. Moreover, the majority considered, unlike the applicant, that the way in which Texas University was taking ethnicity into account, was an effective way to increase diversity in classes. This was backed by statistics too.
On the other hand, the dissenting judges considered the following. They weren’t convinced at all about the theory that ethnic diversity would produce educational benefits, nor that the theory would be strong enough reason to treat applicants differently because of their race. This was an interesting statement, considering that the Supreme Court had ruled the opposite in an earlier case, the Grutter case. They also questioned why the University of Texas said that underrepresentation of Asian-American students would justify their admission policy when the policy would not even benefit them. Moreover, they thought that the University of Texas hadn’t given a definition for the term ” critical mass ” although achieving this ” critical mass ” of certain minority groups was allegedly the goal of their policy of affirmative action. Also, they had a hard time defining how and how much race affects admissions decisions. To emphasize, concrete and precise goals of this kind for admissions policies are vital for their acceptance, as was ruled in the Fisher I case. Unlike Texas University, they also considered that the so-called normal admission process will bring the educational benefits with minority group students that get accepted through it, and thus the race-conscious admission policy is not needed, while Texas University thought that minority students who get admissioned normally, are not that beneficial to academic community as the students that get admissioned through the race-conscious admission program.
To sum up, the judges disagreed whether the Texas University’s race-conscious admission program conformed with the standards that they almost unanimously set in the Fisher I case. This kind of interesting set-up originates from the partly political Supreme Court system. Looking from Europe, it seems in a way odd. On the other hand, this kind of system can be seen as more democratic than an European purely judicial system.
Team L. M. W. F. (Harvard, Case Genetics)