191TAKE
A S TA N Dincentives. Justice Kennedy wrote, “Percentage plans encourage
parents to keep their children in low-performing segregated
schools, and discourage students from taking challenging
classes that might lower their grade point averages.”Affirmative action is just another kind of
discrimination. Opponents reply that supporters of affirma-
tive action have not provided convincing evidence that racial
diversity in colleges has any beneficial effects. They also argue
that “viewpoint diversity” arguments assume that members of
all racial minorities think alike, drawing a comparison to racial
profiling in law enforcement. It is just as offensive, they say, that
an admissions committee thinks that one black student has the
same views as another black student as it is that a police officer
may pull over a black teenage male just because he fits a certain
criminal profile.
Opponents also argue that affirmative action amounts
to “reverse discrimination” and that any racial classification
is harmful. Justice Alito’s scathing dissent in the Texas case
said, “U.T. has never provided any coherent explanation for
its asserted need to discriminate on the basis of race, and...
U.T.’s position relies on a series of unsupported and noxious
racial assumptions.” Alito also argued that concepts such as
viewpoint diversity and “cross-cultural understanding” are
“slippery” and difficult to analyze systematically.
The Texas case will not be the end of the debate concerning
affirmative action in higher education. A pending suit
challenges Harvard University’s affirmative action program as
discriminating against Asian Americans. If you had to rule on
the Texas case, how would you have decided? Take a stand.Students protest outside the Supreme Court in support of
diversity at the University of Texas.Affirmative Action in
College Admissions
Since 1978, the Supreme Court has endorsed the idea of race as
a “plus factor” in college admissions while rejecting the idea of
strict quotas or point systems. This approach was affirmed in
a 2003 case involving the University of Michigan’s law school,
but many Court-watchers believed that affirmative action
would be struck down in the 2016 case Fisher v. University of
Texas, Austin.a Instead, swing vote Justice Kennedy sided with
the liberal justices, and the Court upheld the practice.
UT Austin’s college admissions process has two parts.
First, anyone in the top 10 percent of a Texas public high
school is guaranteed admission to UT (in recent years this
has been closer to the top 7 percent). Because most high
schools in Texas are somewhat segregated by race, the 10
percent plan automatically creates diversity for the entering
class. Seventy-five percent of in-state students are admitted
via the 10 percent plan. Second, the remaining 25 percent of
in-state students are admitted by a “holistic” program that
evaluates their entire record and includes race as a “plus
factor.” It was this second part that Abigail Fisher challenged
after being denied admission to UT. The legal question
that the Court had to decide was whether the university’s
affirmative action program violated the equal protection
clause of the Fourteenth Amendment and civil rights laws
barring discrimination on the basis of race, or whether the
program could be justified as serving a “compelling state
interest” under the strict scrutiny standard.
Diversity deserves consideration. Advocates of affir-
mative action argue that a diverse student body promotes
viewpoint diversity that is essential to learning. Having racial
diversity in the student body is likely to produce more view-
point diversity in classroom discussions than would occur with
a mostly white student body. The majority opinion in the Texas
case also argued that a more diverse student body leads to
“the destruction of stereotypes,” promotes “cross-racial under-
standing,” and prepares students “for an increasingly diverse
work force and society.” Furthermore, proponents argue, the
courts are not the proper place to decide these issues. Instead,
as with the complex and highly charged topic of racial redis-
tricting, the political branches of government are where these
decisions should be made. The Court endorsed this position of
judicial restraint in a 2014 case involving a ban on affirmative
action in Michigan.b
The Court argued that the Texas approach was “narrowly
tailored” to serve the compelling state interest of viewpoint
diversity because the 10 percent plan, by itself, did not produce
the desired level of diversity and would create perversetake a stand
- To what extent should race be used as a “plus factor” to
promote racial diversity and viewpoint diversity, if at all?
Is the “top 10 percent” plan a better approach? - Think of your own experiences in high school and college.
Has racial diversity contributed to viewpoint diversity?
Take a StandFull_06_APT_64431_ch05_148-197.indd 191 16/11/18 1:31 PM