US Supreme Court considers affirmative action

On 10 October, the Supreme Court of the United States of America heard argument in the case of Abigail Fisher v University of Texas at Austin.   The University is a state university (unlike Yale or Harvard which are private).  As a result, the state can set the University’s admission policies.  Miss Fisher, who is white, had applied for undergraduate admission to the University.  Her application was not successful.  Miss Fisher asserts that the admission policy applied by the University is unlawfully discriminatory against her. 

In 1997 the Texas legislature passed a law that required all Texas state universities to accept on an undergraduate programme any Texas high school senior who ranked in their school’s top 10% of students.   Having found that the ethnic mix of its student population did not match the ethnic mix of the state, a few years later the University devised an admissions policy for the non-10%.  That policy included the applicant’s race as a factor to be considered. 

Miss Fisher’s claim is that the admissions denied her a fair chance in “the admission lottery” (as one judge put it) on grounds of race and so violated the equal protection cause of the Fourteenth Amendment and 42 U.S.C. Section 1983.  The University argues (and so far the US courts have agreed) that the policy uses race in a narrowly tailored way and is an appropriate means of achieving greater diversity in the student body, which is a benefit to the United States as a whole.  

Search Engines will provide many intelligent and thoughtful blogs by experts on US law that analyse the legal arguments and consider the potential impact that the composition of the Supreme Court (and the recusal of one of its members) may have on the decision.   As an English lawyer, the things that I find interesting about the case are:

  • The large number of “briefs” in the court “docket”.  Over 90 amici curiae have filed submissions at the court.  The submissions show the breadth of interest in the outcome of this case.   These friends of the court range from other universities, sector groups and lawyers to civil rights organizations, individuals and business groups.  The majority of them are supporting the University. 
  • The brevity of the actual hearing before the judges of the Supreme Court.  One hour was set aside and the hearing ran from 11.04am to 12.23pm – just over 80 minutes.  In that time, the justices heard from three advocates.  Reading the transcript of that hearing does not tell you much about the legal arguments involved.
  • The emphasis in oral argument on whether or not the University should identify a quota or target as being the point at which it had achieved the aim of having an appropriately diverse student population.  A significant amount of time was spent in argument over whether there should be a “critical mass” of students of one race or another at the University.
  • The similarity in desired outcome but difference in approach between that being argued over in this US case and the positive action provisions of the Equality Act 2010.

In England and Wales, the positive action provisions under the Equality Act permit a body (such as a university or college) to take steps that might otherwise be unlawfully discriminatory where it can be shown that the steps are a proportionate way of:

  1. overcoming a specific disadvantage suffered by people sharing a particular protected characteristic;
  2. meeting the specific and different needs of people who share a protected characteristic, or
  3. enabling or encouraging the participation of people sharing a protected characteristic where their participation is currently disproportionately low. 

It will be recalled that the Equality Challenge Unit published guidance on the application of the positive action provisions in connection with bursaries and awards.  We are seeing increasing numbers of clients seeking advice on whether their specific arrangements meet the requirements of the Equality Act as the risk of them not doing so is that the arrangements are unlawfully discriminatory.  

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