News Column

Effect of Affirmative Action Ruling Unclear, Professor Says

June 24, 2013

Mark Salay--HispanicBusiness.com

Michael Olivas
University of Houston Law Center Professor Michael Olivas.

A ruling Monday by the Supreme Court will keep affirmative action in place, but a prominent law professor expects the court to be dealing with the issue once again.

"In my view it did not do the worst, it did not strike down affirmative action, (but) it did not do the best, which would have been to uphold affirmative action," Michael Olivas, University of Houston Law Center professor, told HispanicBusiness.com. "It had an intermediate policy that said, you've got to go back and look at the plan and see if it was narrowly tailored properly."

The Justices voted 7-1 to send the University of Texas' affirmative action admission policy back to the lower courts, claiming the 5th U.S. Circuit Court of Appeals did not rule on the matter earlier with "strict scrutiny."

The Supreme Court ruling does not have an immediate impact since the ruling did not favor any side considerably, Mr. Olivas said.

"It delays the real effect because it's going to be at least a two-year rollout until a final decision is made and good admission decisions are made," he said. "(It's) so far in advance that they leave the way things are for another three years."

The University of Texas at Austin must again prove that its race-based admission policy is constitutional since the Supreme Court disregarded the previous district court decision to uphold the university's admission requirements. Texas will have to show that no other viable option is available to increase diversity within the campus in order to use race as a factor in admissions.

"I'm confident that it was narrowly tailored, that the policy was the same one used by every other public institution that uses affirmative action and it was transparent," Mr. Olivas said.

In 1997, the University of Texas implemented a policy that guaranteed admission to any student who graduated in the top 10 percent of his or her class in an attempt to increase the number of Hispanic and African-American students. The university instituted the policy after a 1996 appeals court decision limited affirmative action.

Since then, the "10 Percent Plan," which was revised with stricter regulations in 2009, will now only guarantee enrollment for the top 7 percent of high school graduates in 2014. This is in addition to another race-based admission criterion the university uses, which is allowed through the Grutter v. Bollinger Supreme Court decision in 2003 that upheld the University of Michigan Law School's affirmative action policy, and subsequently all other affirmative action admission policies.

The University of Texas is using both race-based plans, which Mr. Olivas thought the Supreme Court might rule against. Mr. Olivas said until the Grutter ruling is overruled or a state ballot measure can act as an intervening variable, affirmative action will continue.

"The Supreme Court might say you can use one or the other, but not both," Mr. Olivas said. "And it may still say that, but I think if it were challenged they couldn't overturn the 'Percentage Plan,' so I think that will probably surface a bit more in the revised remand opinion."

For now, Mr. Olivas notes 53 percent of applicants admitted through the Percentage Plan are white. He predicts the circuit will uphold its prior decision in favor of University of Texas and the Supreme Court will have the opportunity to rule on the case once again.

"I don't think Justice (Anthony) Kennedy, the swing vote, wants to overturn affirmative action, at least not yet, so it's still precarious in a certain sense," Mr. Olivas said. "But it's still a decision that's more subtle, more long-lasting then any one of us ever thought back in 1978 when it was issued, and it remains the law of the land."


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