It needs to be reminded that in 2003, in the year of Michigan case, the Supreme Court allowed to consider race in the selection process under certain circumstances. However, its decision referred to the whole nation and it did not supersede state orders to ban affirmative action in public institutions through state-wide ballot measures or legislation. It is worth adding that educational institutions can also outlaw race-conscious admissions through university policy.
The ruling made in Michigan case contributed to the maintenance of affirmative action but generated public outrage as allotting 20 points to minorities gave African Americans and other groups a major advantage over better qualified candidates. It could be assumed that data presented in 2000 census could also have influence on public opinion about the practice. For the first time in 2000, Americans could identify themselves by choosing more than one race. It can be suggested that results questioned the importance of race in the 21st century. It was noted that there was an increase of racial commingling. For instance, in California, one-seven of babies had mixed parents. Since 1960, the number of marriages between the blacks and the whites augmented seven times. In 2000, about 8 per cent of African-American men married a white woman, including one of the American judges who had African, Indian, French, and Irish roots but who declared that: “Yet, I have reporters call me African American! What does that mean?” It seems that the question remains how to achieve and measure diversity. These dilemmas were presented to show why many Americans may oppose the policy.
Opponents of racial preferences took firm action to deal with the practice. Several states outlawed educational benefits for minorities in admissions. The Texas ban was within the law from 1997 until 2003. In 2012, affirmative action was illegal in seven states, namely Arizona, California, Washington, Michigan, Nebraska, Florida and New Hampshire. The bans went into effect as a result of referenda or executive orders and prohibited taking race into consideration in public sectors. One of the studies showed that bans had an impact on enrolment of minority applicants in these states. For instance, at five selective law schools in California, Texas and Washington, the number of African-American incoming students declined about 4 per cent.
While discussing the future of affirmative action it is important to take a look at the latest legal case known as Fisher v. University of Texas at Austin. In 2008, Abigail Fisher, a white candidate, accused the school authority of discriminating her by admitting less qualified minority applicants. This point links to the policy of the University of Texas which is called the Top Ten Percent plan. It means that Texan students who were at the top of their high school classes were guaranteed admissions to the University of Texas. Remaining students came under individual scrutiny. The admissions committee considered academic achievement, namely test results, class rank and personal accomplishment which involved management abilities, community service, awards and work experience. The personal attainment could also include special circumstances such as economic situation and race. During selection, the racial composition of applicants was not supervised.
It needs to be explained that educational institutions that use race as the factor in public school admissions must prove that their affirmative action programmes meet “strict scrutiny.” It means that race can be taken into account only to achieve an important aim, for instance diversity. It needs to be also confirmed that race is a necessary measure to reach a goal. Strict scrutiny is used by the judiciary power to decide whether the policy is within the Constitution.
Abigail Fisher claimed that the school did not satisfy the above-mentioned criteria. She argued that school did not provide diversity but involved itself in racial balancing. She also questioned whether the goal of the school was necessary. She claimed that the Top Ten Percent plan was sufficient to achieve diversity as it had already contributed to the increase of minority enrolment by admitting students from minority high schools. Consequently, race-conscious selection was inessential. But according to the University of Texas, individualised evaluation helped to achieve even greater diversity.
The district court ruled that the policy of school survived review. However, in 2012, Fisher appealed to the Supreme Court. In 2013, the case was re-examined. The policy of University of Texas was defended. However, it will be more difficult for schools to use race as the way to achieve diversity. The affirmative action practice implemented by schools will undergo closer review. Schools will have to prove that the factors which were applied were necessary to provide diversity by demonstrating that race-neutral criteria which they used were ineffective. Fisher commented the Court’s decision by saying: “I am grateful to the justices for moving the nation closer to the day when a student’s race is not used at all in college admissions.”