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Supreme Court’s decision sets higher standard on affirmative action

By   /   June 24, 2013  /   No Comments

By M.D. Kittle | Wisconsin Reporter

MADISON – Some affirmative action opponents saw a U.S. Supreme Court ruling Monday as sidestepping the controversial issue, but one of the most fierce supporters of dismantling the program believes the decision is a positive step.

Jennifer Gratz, CEO of XIV Foundation, saw the court’s 7-1 decision in Fisher v. University of Texas as a strong indication the court is serious about putting race-based standards at universities on the path to extinction.

“The Court once again confirmed that universities must be moving to end these policies and that they must first attempt to achieve diversity through race-neutral means,” Gratz said in a statement.

PROGRESS: Jennifer Gratz, founder of the XIV Foundation, says, ‘Racial discrimination will not end simply by passing a law or by receiving a favorable legal decision.’

The white civil rights leader who founded the Michigan-based XIV Foundation, named after the 14th Amendment to “defend the principle of equal treatment and a colorblind society,” was the plaintiff in another high profile Supreme Court Case, Gratz v. Bollinger in which the high court, in a 6-3 decision, ruled against the University of Michigan and its affirmative action admissions policy a decade ago.

In 1995, Gratz was denied admission to the university. She and another white student filed a lawsuit, charging Michigan’s admissions point scale to rank applicants, which gave bonus points to black, Hispanic and Native American applicants, was inherently unfair and threatened the plaintiffs right to “equal protection of the laws under the Fourteenth Amendment.”

While Gratz won a “personal victory,” University of Michigan law school student Barbara Grutter lost the landmark case Grutter v. Bollinger.

In writing the 5-4 majority opinion, then-Justice Sandra Day O’Connor submitted that the University of Michigan Law School had a “compelling interest” in promoting class diversity through an admission policy that offered special consideration to minorities without quotas. O’Connor held that in 25 years, affirmative-action policies may prove unnecessary to promote racial diversity.

Gratz and affirmative action opponents everywhere were hoping the case of Abigail Fischer, a white student rejected by the University of Texas-Austin, would have taken direct aim at Grutter v. Bollinger.

In an interview with Wisconsin Reporter earlier this month, Gratz said the nation is a long way from real, color-blind racial equality.

“Next year is the 50th anniversary of the 1964 Civil Rights Act, the promise of that was supposed to be a color-blind government. We’re not even anywhere close to that right now,” she said. “New policies are being developed in race-conscious decision-making.”

Gratz, however, said there is much in the Fisher ruling that affirmative action opponents can take solace in.

“Most importantly, this is a reminder that the court barely tolerates race preferences and that attorneys on our side should be bold and ask for Grutter to be overturned.”

Edward Blum, whose Project on Fair Representation filed the suit on Fisher’s behalf, told the Wall Street Journal the University of Texas’ racial preference policy would fail the stricter standards laid out through court precedents.

“The Supreme Court has established exceptionally high hurdles for the University of Texas-Austin and other universities and colleges to overcome if they intend to continue using race preferences in their admissions policies,” Blum told the publication. “This decision begins the restoration of the original color-blind principles to our nation’s civil-rights laws.”

Justice Ruth Bader Ginsburg, the lone dissenting opinion, wrote that the university’s plan met constitutional muster and should not be vacated and remanded back to lower court for further review.

Bill Powers, president of UT-Austin, told WSJ he was “encouraged” by the ruling.

“We believe the university’s policy fully satisfies” the “strict standards” set by court precedents.

Meanwhile, the clock is ticking on O’Connor’s logic that in 25 years affirmative-action policies may prove unnecessary to promote racial diversity.

With shifting demographics, including women outpacing men in college enrollment, preference-based policies are taking on new looks unforeseen a generation ago. Gratz told Wisconsin Reporter that the changing dynamics of preferential treatment only drive home flaws in such a system.

“We give all the power to university administrators to determine who is going to be favored or disfavored at some point,” she said. “Just because you are the favored group right now doesn’t mean 10, 20, 30 years from now you are going to be part of the favored group.”

In her statement Monday following the Supreme Court’s ruling, Gratz said the decision confirms the fight for equal treatment is far from over.

“Racial discrimination will not end simply by passing a law or by receiving a favorable legal decision. It takes a determined, unrelenting movement to bring about such lasting change. The Supreme Court won’t do it for us.”

Contact Kittle at [email protected]


M.D. Kittle is bureau chief of Wisconsin Watchdog and First Amendment Reporter for Watchdog.org. Kittle is a 25-year veteran of print, broadcast and online media. He is the recipient of several awards for journalism excellence from The Associated Press, Inland Press, the Wisconsin Broadcasters Association, and others. He is also a member of Investigative Reporters & Editors. Kittle's extensive series on Wisconsin's unconstitutional John Doe investigations was the basis of a 2014 documentary on Glenn Beck's TheBlaze. His work has been featured in Town Hall, Fox News, NewsMax, and other national publications, and his reporting has been cited by news outlets nationwide. Kittle is a fill-in talk show host on the Jay Weber Show and the Vicki McKenna Show in Milwaukee and Madison.