Supreme Affirmative Action Battle–View from Washington

Author: David B. Weisenfeld, XpertHR Legal Editor

A clearly divided Supreme Court took a skeptical view yesterday of the University of Texas’ use of race as a factor in admissions. While the case arises in the educational realm, the implications for employers that make use of affirmative action efforts cannot be missed.

Abigail Fisher sued the university after it rejected her application for admission. Fisher claims she was passed over in favor of less-qualified minority candidates and that this denial dimmed her future job prospects because she had to attend a less prestigious school. Texas counters that race had nothing to do with its decision.

All eyes in the courtroom were on Justice Anthony Kennedy whose vote is likely to decide the case. Justice Kennedy appeared to take a dim view of the university’s argument, telling the lawyer for Texas at one point, “What you’re saying is race is what counts above all.”

Only eight justices will decide the case because Justice Elena Kagan recused herself. A 4-4 tie would in essence uphold the university’s plan since the Fifth Circuit Court of Appeals sided with Texas.

A wide array of groups including large employers, the military and the Americans with Civil Liberties Union are backing the university’s position.

Nonetheless, the question after the arguments seemed less whether Texas’ use of race as a plus factor in admissions will be upheld than how far the Supreme Court will go in limiting affirmative action. In 2003, the Court upheld its use in a case involving the University of Michigan, Grutter v. Bollinger.

Fisher’s attorneys are not asking for Grutter to be overruled. But the Court could still scale affirmative action back significantly despite the fact that the Texas plan appears to go no futher than Michigan’s and does not include a strict numerical racial quota.

Such an outcome could spell trouble for employer-initiated affirmative action programs depending on the breadth of the Court’s opinion. This could be especially true in the public conracting arena where such programs are far more common. Texas and the employer groups that support the university fear that if the program at issue is struck down it will hamper diversity efforts nationwide.

The author of the 2003 Grutter opinion, Sandra Day O’Connor, wrote that she expected the need for affirmative action to last for 25 years. So the Supreme Court surprised observers when it agreed to hear Fisher’s appeal. But O’Connor has since retired and been replaced by the more conservative Justice Samuel Alito, an opponent of any racial preferences. A decision is expected before the end of the Court’s term in June. 

XpertHR will a more in-depth look what this case could mean for employers in an upcoming podcast. Continue to follow my updates on Supreme Court and other employment developments affecting HR professionals on Twitter @David Weisenfeld.



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