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2013-06-25

In Affirmative Action Ruling, Supreme Court Upholds Importance of Diversity in College Admissions

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Damon Hewitt, director of the Education Practice Group at the NAACP Legal Defense and Educational Fund.

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With just days before the summer recess, the Supreme Court has handed down the first of four major decisions on issues of civil rights, discrimination and equality, ruling on a challenge to the use of race-conscious affirmative action in college admissions. The petitioner, Abigail Fisher, accused the University of Texas at Austin of discrimination for rejecting her college application, she says, because she is white. Many had expected the court’s conservative members to seize upon the case as part of a right-wing effort to end affirmative action for good. But instead, the court came down with an opinion that gives both sides reasons to cheer. In a 7-to-1 decision, justices sent the case back to a federal appeals court and told it to consider affirmative action under a harsher standard. But they also refused to overturn the 2003 decision in Grutter v. Bollinger, which rejected the use of racial quotas in college admissions but allowed for less direct methods of affirmative action in order to improve diversity. We’re joined by Damon Hewitt, director of the Education Practice Group at the NAACP Legal Defense and Educational Fund. The group filed a number of amicus briefs in the Texas case on behalf of the Black Student Alliance at the University of Texas-Austin.

Transcript

This is a rush transcript. Copy may not be in its final form.

AARON MATÉ: With just days before the summer recess, the Supreme Court has handed down the first of four major decisions on issues of civil rights, discrimination and equality. On Monday, the court ruled on a challenge to the use of race-conscious affirmative action in college admissions. The petitioner in the case, Abigail Fisher, is a white woman who accused the University of Texas of discrimination for rejecting her application. Many had expected the court’s conservative members to seize upon the case as part of a right-wing effort to end affirmative action for good. But instead, the court came down with an opinion that gives both sides reasons to cheer.

In a seven-to-one decision, justices sent the case back to a federal appeals court and told it to consider affirmative action under a harsher standard. But they also refused to overturn the 2003 decision in Grutter v. Bollinger, which rejected the use of racial quotas in college admissions but allowed for less direct methods of affirmative action.

AMY GOODMAN: Although affirmative action in college admissions stays alive for now, it continues to face an uncertain future. It’s long been a target of right-wing groups, and Monday’s ruling could lead to more lawsuits in the next year.

Meanwhile, another major decision on racial equality could come as early as today. The court is set to rule on a challenge to Section 5 of the Voting Rights Act, which requires several states and counties with a history of racial discrimination to clear election-related changes with the federal government.

For more, we’re joined by Damon Hewitt, director of the Education Practice Group at the NAACP Legal Defense and Educational Fund. The group filed a number of amicus briefs in the Texas case on behalf of the Black Student Alliance at the University of Texas-Austin.

I want to welcome you to Democracy Now! Can you start off by saying, Damon, what your response is to the Supreme Court ruling? It surprised many.

DAMON HEWITT: Well, it certainly did surprise many, but we weren’t totally surprised. What the court essentially told us is that the lower courts should more faithfully apply the existing standard. There really is no new law coming out of yesterday’s decision. It’s essentially the same strict scrutiny standard that always applied. But, at base, we think that this is really a victory for supporters of diversity and opportunity in higher education, and it’s certainly a loss, certainly, at this point, for Abigail Fisher’s counsel, who really thought that they would really get to a chance to undo what’s been settled precedent for some time.

AARON MATÉ: Damon, I wanted to get your response to Justice Clarence Thomas. He wrote in a concurring opinion the case—he wrote in a concurring opinion that was longer than the majority opinion. Justice Thomas said he wanted the court to, quote, "hold that a State’s use of race in higher education admissions is categorically prohibited by the Equal Protection Clause." He compared the arguments in favor of affirmative action to those used to support segregation, calling them, quote, "virtually identical." He added, quote, "The use of race has little to do with the alleged educational benefits of diversity," and said, quote, "Slaveholders argued that slavery was a 'positive good' that civilized blacks and elevated them in every dimension of life." Can you respond? And can you also talk about what you expect to happen once this case moves back down to the appeals court?

DAMON HEWITT: Certainly. You know, in that—that opinion really assumes facts not in evidence. It assumes social science that simply doesn’t exist. If it does exist, it’s basically junk science. Really, it contemplates a world that ignores the fact that the Supreme Court upheld race-conscious affirmative action programs in Grutter v. Bollinger. I think the chief frustration that that opinion suggests or conveys is that the court didn’t overrule Grutter, or that it decided Grutter in the first place. If you even look at the citations to all of the different types of so-called evidence indicated in that opinion, it’s actually information that predates the court’s ruling in Grutter. So it’s really not dealing with contemporary realities. It’s not even dealing with contemporary law. And frankly, to compare chattel slavery and legally mandated segregation to race-conscious affirmative action programs really defies logic. And we believe not only have most of the justices rejected that, because no other justices joined that opinion, but most Americans would eject—reject, rather, that kind of logic, as well. In terms—

AMY GOODMAN: Damon, the petitioner in the case is Abigail Fisher, the woman who says she was rejected by the University of Texas because she’s white. In this online video, Fisher billed her lawsuit against affirmative action as a challenge to discrimination.

ABIGAIL FISHER: There were people in my class with lower grades who weren’t in all the activities I was in who were being accepted into UT, and the only other difference between us was the color of our skin. A good start to stopping discrimination would be getting rid of the boxes on applications—male, female, race, whatever. Those don’t tell the admissions people what type of student you are or how involved you are. All they do is put you into a box. Get rid of the box.

AMY GOODMAN: That’s Abigail Fisher. Officially, she’s the plaintiff in the Supreme Court case, but that’s not the whole story. What’s not widely known is that the case was in fact spearheaded by a man named Edward Blum. A former stockbroker, he recruited Fisher after a long search for a student who could challenge affirmative action in court. He came across her because she happens to be the daughter of one of his old friends. Backed by the secretive right-wing group Donors Trust, Blum has ensured that wealthy right-wing donors are covering Fisher’s legal bills. In this video from 2008, Blum makes an open appeal for Texas students to join his cause against affirmative action.

EDWARD BLUM: This student here in Houston and thousands of other students throughout the state of Texas have been unfairly punished after UT decided to reintroduce race-based affirmative action. It’s time for UT to stop. I encourage all high school students who have been rejected from UT to visit at utnotfair.org, tell us your story, contact us. If you’ve been rejected from UT, we want your story, and we want to try to help you.

AMY GOODMAN: According to Reuters, Edward Blum has launched at least a dozen lawsuits against race-based protections in the United States. These also include the challenge to the Voting Rights Act by Alabama’s Shelby County, which the Supreme Court could decide on today. Damon Hewitt, your response about his significance?

DAMON HEWITT: Well, look, we won’t disparage any individual in trying to seek access to the courts, but what we see here and what Ed Blum and his organization have done is that they’re telling—they’re trying to tell America that race doesn’t matter. But essentially what they’re really saying in subtext is that the facts don’t matter, the fact that Abigail Fisher would not have been admitted to the University of Texas regardless of her race, based upon undisputed evidence in the record in this case, the fact that in the Voting Rights Act case, which one of my colleagues argued before the Supreme Court in the Shelby County case, that Shelby County, Alabama, has one of the very worst records of discrimination of any jurisdiction in the country. Those facts don’t matter to him, and that’s troubling to us. And we think that’s why the court will move cautiously and in a measured way. It did that certainly in the Fisher case, and we hope it also does that in the Voting Rights Act case, as well.

AMY GOODMAN: I wanted to read a quote for you from Ruth Bader Ginsburg, who wrote the only dissent in the seven-to-one ruling, noting Fisher argued that, quote, "Texas’ Top Ten Percent Law and race-blind holistic review of each application achieve significant diversity, so the University must be content with those alternatives. I have said before and reiterate here that only an ostrich could regard the supposedly neutral alternatives as race unconscious. ... I have several times explained why government actors, including state universities, need not be blind to the lingering effects of 'an overtly discriminatory past,' the legacy of 'centuries of law-sanctioned inequality.'" Damon, the importance of what Judge Ruth Bader Ginsburg had to say?

DAMON HEWITT: Well, Justice Ginsburg has really, you know, put the lie to the notion that there’s this kind of dichotomy between race-conscious and race-neutral. In fact, what universities do today is really along a spectrum of race consciousness, considering the race of the individual or considering race in a way that the Top Ten Percent Plan does, ironically, relying upon the hypersegregation of schools, drawing the top 10 percent in its program from hypersegregated black schools, Latino schools and white schools to try to manufacture some modicum of diversity. And she also noted the danger of camouflage, the notion that without full information about an applicant, that people will make assumptions based upon an individual’s surname or even their given name, their first names. So, you know, I think Justice Ginsburg is really saying, "Let’s be honest about what’s really at play here. Let’s not pretend that we cannot see race." In fact, many people would say in order to try to claim not to see race, you actually have to first acknowledge it in order to ignore it.

AMY GOODMAN: Voting rights—we just have 30 seconds—a decision could come down as early as today, Damon.

DAMON HEWITT: It could. And, look, we argued in the U.S. Supreme Court, and we argued below, that the Voting Rights Act is still necessary. Justice—Chief Justice Roberts said the South has changed, and that’s true, but Shelby County certainly hasn’t changed as much as some would like to claim, nor has Alabama. And the Voting Rights Act is still necessary there and all of the covered jurisdictions, as well.

AMY GOODMAN: Damon Hewitt, we want to thank you for being with us, director of the Education Practice Group at the NAACP Legal Defense and Educational Fund, where he’s become known as one of the nation’s leading experts on the civil rights implications of school discipline policies. In 2002, he launched LDF’s Dismantling to School-to-Prison Pipeline Initiative, which challenges racial disparities that criminalize students and push them out of schools.

This is Democracy Now!, democracynow.org, The War and Peace Report. When we come back, we’ll look at some of the information that’s come out around the National Security Agency, how much it knows about you. Stay with us.

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