Federal Appeals Court’s Decision Could Expand Affirmative Action, Says Chief Judge

David Paulin, American Thinker, June 22, 2011

A Federal appeals court has rejected a challenge made by two white students against a controversial affirmative action program at the University of Texas in Austin–a decision that could expand race-based admissions nationwide, according to a dissenting judge in the case. The case, Fisher v. the University of Texas in Austin, may head to the U.S. Supreme Court, say observers.

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At issue was a complaint filed in 2008 by two white students, Abigail Fisher and Rachel Michalewicz. They contended the University of Texas in Austin had violated their constitutional rights by rejecting their applications because of their race. They’d wanted the full appeal’s court to rehear their complaint.

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In her powerful dissent, Chief Judge Edith H. Jones –a Republican whom President Ronald Reagan appointed to the 5th Circuit in 1985–criticized the court for failing to undertake a “strict scrutiny” of the university’s affirmative action program; it instead gave “total deference to university administrators,” she wrote.

Most significantly, Jones said the court’s decision was potentially precedent-setting and could expand affirmative action programs in the nation’s public universities. “This decision in effect gives a green light to all public higher education institutions in this circuit, and perhaps beyond, to administer racially conscious admissions programs without following the narrow tailoring that Grutter requires,” she wrote, referring to the U.S. Supreme Court’s 2003 decision in Grutter v. Bollinger.

In that landmark decision, the court ruled in favor of the “narrowly tailored” affirmative action policy of the University of Michigan Law School. The court nevertheless stressed that “race-conscious admissions policies must be limited in time,” perhaps running their course in 25 years.

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Regarding the potentially absurd outcomes of the affirmative action program, she wrote:

“The pernicious impact of aspiring to or measuring “diversity” at the classroom level seems obvious upon reflection. Will the University accept this “goal” as carte blanche to add minorities until a “critical mass” chooses nuclear physics as a major? Will classroom diversity “suffer” in areas like applied math, kinesiology, chemistry, Farsi, or hundreds of other subjects if, by chance, few or no students of a certain race are enrolled? The panel opinion opens the door to effective quotas in undergraduate majors in which certain minority students are perceived to be “underrepresented.” It offers no stopping point for racial preferences despite the logical absurdity of touting “diversity” as relevant to every subject taught at the University of Texas.”

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  • Anonymous

    First they came for the high schools. Then they came for the colleges. Soon they will come for my neighborhood. Who will speak for me?

  • Say It!

    Anti-white discrimination (aka “affirmative action”) is not only disgusting and unconstitutional it is clearly ineffective: blacks as a group are still and continuously at the lowest level of educational achievement. It may be said to be beneficial for some blacks, but only in the sense that allowing a certain amount of bank robbery is beneficial to some bank robbers.

  • Question Diversity

    It’s not clear from the original article — Is this the famous “Top Ten Percent” idea that George W. Bush peddled while Texas Governor? That is, anyone who finished in the top ten percent of his or her graduating class in high school was guaranteed college admission. Being mindful of the fact that in some black and Hispanic high schools, you need not have much more than a pulse and three brain cells to finish in the top ten percent of your HS graduating class, while a white student who finishes one slot away from the top ten percentile, who could be valedictorian at one of these black and Hispanic schools in his or her sleep, is out of luck.

  • WR the elder

    Remember there are now two Obama appointees on the Supreme Court, including the Wise Latina herself. Be afraid. Be very afraid.

  • Anonymous

    Should make them lots dumber. AA will make Blacks/Hispanics more complacent and give them more sense of entitlement. It will make Whites/Asians work even harder to overcome the inequities imposed by the courts.

    AA has been around for decades now; the courts don’t have the courage to change it, so, we’ll need to just cope with it.

    Oh, remember this when you see a Black doctor, dentist or whatever. It’s important to know they got to where they are through govt fiat.

  • Bon, From the Land of Babble

    Anyone who finished in the top ten percent of his or her graduating class in high school was guaranteed college admission. Being mindful of the fact that in some black and Hispanic high schools, you need not have much more than a pulse and three brain cells to finish in the top ten percent of your HS graduating class

    –QD

    Yes, true, but in California…

    Those in the top 9% of their high school graduating class are guaranteed admission to one of California’s UCs.

    What’s happening now is Asians from mostly-Asian schools, are transferring into hispanic (NOT black) schools because they know the top 9% of an Asian school is a vastly different matter than the top 9% of a hispanic school.

    The names of valedictorians and salutatorians from 99% hispanic schools in the LAUSD are more likely than not Asian, not hispanic.

    Bon

  • Fr. John

    Silk purses and sow’s ears, people.

  • Allan

    Years ago someone, I forget who, said: “Affirmative action means that the pampered daughter of a Black multi-millionaire gets thirty extra credits on her college acceptance scores which are denied to the hard working son of a White waitress and single mother.”

    To me, that says it all.

  • ATBOTL

    As the white population dwindles, expect more anti-white discrimination.

  • Jake

    This whole mess comes down in the Grutter v. Bollinger Michigan Law School case. Supreme Court Justice Sandra Day O’Connor wrote for the majority and decided that “diversity” in schools was so important that it trumped the 14th Amendment’s equal protection clause. However, she attempted to cover her blatant violation of the Constitution by writing that maybe we would only have to violate the Constitution for 25 years or so. Her opinion was outrageous then and even more outrageous now.

    Shouldn’t the schools be looking for EXCELLENCE in students instead of skin color?

  • on the lam from the Thought Police

    Blacks should be ashamed to demand affirmative action policies. Those policies draw attention to the fact that the race gap persists in achievement, performance, and intelligence nearly two generations after the passing of the civil rights legislation.

  • Vic

    I have to agree with this post we DO need more A.A. so that we can have more Doctors, Surgeons, Airline Pilots.

    Sure maybe they can’t read or write or do these jobs but since the start of AA this has never been a factor considered before, has it?

    I know I would love to have a guy flying the aircraft I was in. Who cares if he only has an IQ of 81, don’t be so racist.