November 30, 2015

Fresno newspaper calls Proposition 209 a "mistake"

By Meriem L. Hubbard Senior Attorney

Next week, the U.S. Supreme Court will hear oral argument for the second time in Abigail Fisher’s case against the University of Texas at Austin.  The Fresno Bee’s editorial board chimed in on the case yesterday, criticizing California’s Proposition 209 and blaming its passage for the lack of diversity among students in the University of California system.

Abigail Fisher, who is white, alleges that she was not admitted to the University of Texas because of  her race.  She sued the University, arguing that the use of race as part of an individual candidate’s overall qualifications for admission violates the Equal Protection Clause.  In 2013, the Supreme Court held that the lower court–the Fifth Circuit Court of Appeals–did not use a sufficiently demanding standard of strict scrutiny, and remanded the case to give the Fifth Circuit Court a chance to correct that error.  On remand, the Fifth Circuit simply adopted the reasons the University offered in support of considering race in admissions.

The Supreme Court agreed to hear the case again to decide if the Fifth Circuit’s endorsement of the University’s use of race preferences in undergraduate admissions decisions meets the standard of strict scrutiny set out by the Court in its earlier decision in the case.  So, what does all of this have to do with Proposition 209?

The only briefs discussed in the Bee’s editorial are those submitted in support of the University by the University of California and California Attorney General Kamala Harris.  Unsurprisingly, both of those briefs enthusiastically support the use of racial preferences, and bemoan the fact that, without such preferences, California public universities are unable to admit minority students in numbers that match the State’s demographics. Apparently, those arguments lead the Fresno Bee’s editorial staff to conclude as follows: it is “clear that practically and socially, dropping race as a factor in college admission [in California] was a mistake.”

In fact, the “practical and social” implications of prohibiting race preferences have little relevance to the issue that will be decided by the Court.  The matter before the Court is limited to the type of proof the University must present in order to prove that its race-conscious admissions program is necessary.  Is it sufficient for a university to assume, but not prove, that its admissions policy is inextricably linked to the educational benefits of a diverse student body?  That is what the Fifth Circuit Court allowed, and the Supreme Court will decide.

It is a particularly odd strategy to support the use of race-preferences in Fisher by describing Proposition 209’s prohibition of race-preferences as a mistake that should not be repeated throughout the country.  In April of last year, the Supreme Court upheld amendments to state constitutions (like Proposition 209) that prohibit state universities from considering race as part of their admissions process. The Court ruled that such provisions do not violate the Equal Protection Clause. [PLF filed amicus briefs in that case, Schuette v. Coalition to Defend Affirmative Action.]  If a clear prohibition of race-preferences does not violate the Equal Protection Clause, then a tough standard of proof regarding the necessity of race-preferences in Fisher would not violate the Equal Protection Clause.

PLF’s Joshua Thompson will attend the Supreme Court argument in Fisher next week. Be sure to check back next Wednesday afternoon for information about the argument.

 

 

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