- Will Consovoy, Consovoy McCarthy PLLC
The battle over the use of affirmative action in college admissions seems far from over, as the recent filing of two federal lawsuits demonstrates. The Project for Fair Representation recently sued both Harvard University and the University of North Carolina at Chapel Hill for allegedly capping the number of Asian-Americans they admit and using racial classifications to engage in invidious discrimination. Edward Blum and William Consovoy provided a litigation update on these and other cases.
While the Supreme Court in City of Richmond v. J.A. Croson Co. (1989) and Adarand Constructors, Inc. v. Pena (1995) handed down landmark decisions against the use of racial preferences in government contracting, the practice continues. One of the largest such federal programs is run by the Small Business Administration, but Rothe Development Co. has now challenged it, in a case where the federal district court will hear oral argument later this month. The lawyer in that case -- who also represented Rothe in its successful challenge to a similar U.S. Department of Defense program -- is David Barton, and he discussed the case in this Teleforum. Also participating in the discussion was Roger Clegg, President and General Counsel of the Center for Equal Opportunity.
On July 25, 2014, the Fifth Circuit Court of Appeals issued its decision in Fisher v. University of Texas at Austin, on remand from the Supreme Court of the United States. In a 2-1 decision, the panel upheld the University of Texas' affirmative action policies, "persuaded by UT-Austin ... of its necessary use of race in a holistic process and the want of workable alternatives that would not require even greater use of race." Was this decision consistent with the Supreme Court's 7-1 decision in June 2013? What will happen going forward? Our expert answered these and other questions for a live call-in audience.
Race-based affirmative action had been declining as a factor in university admissions even before the recent spate of related cases arrived at the Supreme Court. Since the mid-1990s, the percentage of four-year public colleges that consider racial or ethnic status in admissions has fallen from 60 percent to 35 percent. Only 45 percent of private colleges still explicitly consider race, with elite schools more likely to do so, although they too have retreated. Law school professor and civil rights activist Sheryll Cashin believes that this isn’t entirely bad news, because, as she argues, affirmative action as currently practiced does little to help disadvantaged people. The truly disadvantaged are not getting the quality schooling they need in part because backlash and wedge politics undermine any possibility for common-sense public policies. Using place instead of race in diversity programming, she writes, will better amend the structural disadvantages endured by many children of color, while enhancing the possibility that we might one day move past the racial resentment that affirmative action engenders. In Place, Not Race: A New Vision of Opportunity in America, Professor Cashin reimagines affirmative action and champions place-based policies, arguing that college applicants who have thrived despite exposure to neighborhood or school poverty are deserving of special consideration.