High court poised to upend civil rights policies

Published on NewsOK Modified: March 31, 2013 at 1:27 pm •  Published: March 31, 2013
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The share of black students has since increased slightly to 6 percent, while Hispanic enrollment rose to 26 percent.

The university's affirmative action plan is being challenged in the Supreme Court by Abigail Fisher, a white student who missed the cutoff and was rejected. Fisher says she was denied fair consideration because of her race.

A 2003 Supreme Court opinion said universities may consider race only as one of several factors to promote diversity. The court said diversity benefits everyone because in a global economy it fosters leaders who can relate to people of different backgrounds.

In the last week, justices also agreed to take up a second affirmative action case this year, deciding whether states may pass laws that restrict the use of race preferences in college admissions. That case involves an appeal to a lower court ruling that found a 2006 voter-approved ban in Michigan unconstitutional, reasoning that such bans put minorities at a disadvantage.

The justices' decision to hear the Michigan case next fall — with their decision in the Texas case still to be announced this spring — suggests that the court will not decide in the Texas case to eliminate affirmative action programs in higher education.

In the seven or so states that enacted bans on affirmative action at their public universities, freshman enrollments of blacks and Hispanics almost always fell afterward — as much as 50 percent at UCLA and the University of California, Berkeley — although in some cases they later rebounded. Those states now include Arizona, California, Florida, Nebraska, New Hampshire, Oklahoma and Washington. A Supreme Court ruling that further restricts affirmative action could shake up college admissions policies nationwide, perhaps shifting focus to low-income students or low-performing schools.

Before opting to enroll at Texas, Poole says he considered attending a mostly white university in Iowa and a historically black college in Louisiana. The college course he now values the most: an advertising seminar that he attended along with a Hispanic, a female student-athlete and an Asian-American. No one in that class was a "minority," he said, and there was a range of perspectives.

Outside class, Poole says his organization has experienced racial incidents. One white student ran up in "blackface" to where members were gathered on campus, daring them to respond. A legal brief filed by the National Association for the Advancement of Colored People on behalf of Poole's group lists other racial incidents in recent years, some of which led to suspensions or public apologies.

"Racial diversity is a conversation we need to have," he said.

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Not since the tumultuous 1960s have U.S. ideals of equality been more closely contested. Legal analysts say a Supreme Court holding of a colorblind Constitution, either as a matter of law or practical effect, could begin to emerge in two rulings on voting rights and affirmative action due out by late June. A third ruling in the Michigan affirmative action case will come next term.

The five conservative justices who make up a majority could overturn the 2003 opinion or take a less dramatic step. The court may opt for tighter restrictions that make it difficult for colleges to consider race or rule narrowly that in a situation like Texas, its unique top 10 percent plan is enough on its own to achieve diversity.

In the court's other racial case, a conservative majority may declare the 1965 Voting Rights Act constitutionally flawed for its focus on racism in the South but leave it up to lawmakers to sort it out.

The court could also find a less sweeping, more technical way of deciding the voting rights case, much as they did four years ago. Back then, Chief Justice John Roberts suggested Congress should update the law to reflect improved conditions in the South. Congress hasn't done so.

Prominent legal bloggers are already warning of sharp public reaction, especially if justices strike down federal voting protections.

"If the court rules in a conservative direction, this will be a pivotal year with regard to race in the Constitution and a year that could have a devastating effect on racial diversity," adds Erwin Chemerinsky, dean of the University of California, Irvine law school.

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Has the country put its racist past behind it? That question is at the core of the challenge to the Voting Rights Act. The arguments before the court raised questions about whether new, more subtle forms of voting discrimination have taken the place of Jim Crow laws.

In 1870, the Constitution guaranteed blacks the right to vote. But for many decades afterward, whites in the post-slavery South used poll taxes and literacy tests to block African-Americans from voting.

That changed in 1965 with enactment of the Voting Rights Act, which let minorities file lawsuits against voter discrimination. Section 5 of that law went even further, requiring nine states, mostly in the South, and scores of counties and townships in seven other states, all with histories of disenfranchisement, to get federal approval before making any election change. Changes can include everything from a different poll location to a new political redistricting map.

The voting act was renewed by Congress in 2006 for another 25 years. The Justice Department and the federal courts last year used Section 5 to block voter restrictions in South Carolina, Texas and parts of Florida. That saved hundreds of thousands of votes that would otherwise have been lost in November, according to the Brennan Center for Justice. Many were cast by blacks and Hispanics who turned out for Obama.

Lawyers for Shelby County, Alabama, which is challenging Section 5, say the tables have turned in a nation that is now much more racially diverse, with minority voters possibly holding an unfair advantage.

"You have a different constituency from the constituency you had in 1964," attorney Bert Rein told the justices. "Senators who see that a very large group in the population has politically wedded themselves to Section 5 are not going to vote against it."

Richard Hasen, a law professor at the University of California, Irvine, and author of Election Law Blog, says the "smart money" now is on the Supreme Court striking down Section 5, leading to consequences for minority voters such as "more brazen partisan gerrymanders, cutbacks in early voting and imposition of tougher voting and registration rules in the formerly covered jurisdictions."

But if the court strikes down "a crown jewel of the civil rights movement," he said, that could spark a public backlash that sends Congress back to the drawing board, with any resulting new law applying equally to all states.

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Associated Press writer Mark Sherman and AP Director of Polling Jennifer Agiesta contributed to this report.

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Online:

www.census.gov

www.supremecourtus.gov

www.utexas.edu



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