A call to action

AuthorTa'Ronce M Stowes
Published date01 December 2013
Date01 December 2013
DOIhttp://doi.org/10.1177/1358229113499482
Subject MatterArticles
Article
A call to action:
Challenging diversity
initiatives in the wake of
Fisher v. University of
Texas at Austin
Ta’Ronce M Stowes
Abstract
In Fisher v. University of Texas at Austin, the Fifth Circuit Court of the Appeals was recently
charged with determining whether the University’s race-conscious admissions policy is
narrowly crafted to produce an ethnically diverse student body and the educational ben-
efits that flow therefrom. In light of the modern hostility towards affirmative action, as
demonstrated by US Supreme Court opinions and various statewide bans of racially pre-
ferential programs, the pundits question whether affirmative action will soon become
obsolete. Equally important, since such state bans have proven to correlate with declines
in public college admission rates of minorities, and because one’s education naturally
coincides with their job opportunities, the Fisher ruling could indirectly perpetuate long-
standing barriers between minorities and lucrative career options that have been tradi-
tionally closed to them. Thus, a question that may become pertinent in the aftermath of
Fisher is, ‘‘In a nation without affirmative action programs, how can employment institu-
tions ensure that historically disenfranchised groups will be recruited and considered for,
and represented in, the corporate workforce?’’ Notwithstanding Fisher’s ultimate judg-
ment, it is incumbent upon employers to forge the answer by significantly broadening
their current diversity recruitment efforts if Corporate America is to ever truly achieve
its critical mass.
Keywords
Fisher, diversity, affirmative action, race, employment
Florida A&M University, College of Law, Orlando, FL, USA
Corresponding author:
Ta’Ronce M Stowes, Florida A&M University, College of Law, Orlando, FL, USA.
Email: taronce.stowes@gmail.com
International Journalof
Discrimination and theLaw
13(4) 292–323
ªThe Author(s) 2013
Reprints and permission:
sagepub.co.uk/journalsPermissions.nav
DOI: 10.1177/1358229113499482
jdi.sagepub.com
Introduction
Affirmative action
1
began not merely as a legal mandate. It was a moral ‘‘call to
action,’’
2
a charge that envisioned every person, no matter their ethnic composition,
enjoying equality in human abilities and having similar chances as the next candidate
to be considered for all of life’s opportunities.
3
‘‘The emphasis is on opportunity,’
4
because the pundits have misconstrued the purpose and role of affirmative action
programs in our educational and employment systems. Such initiatives ‘‘are not meant
to guarantee equal results—but instead proceed on the common-sense notion that if
equality of opportunity were a reality, African Americans[] ...and other groups facing
discrimination would be fairly represented in the nation’s educational institutions’’ and,
naturally, the nation’s workforce.
5
Yet, this concept has been lost in the translation of
contemporary American jurisprudence concerning affirmative action.
To be sure, in the Fisher v. University of Texas at Austin trilogy, the presiding courts
have contemplated whether Supreme Court affirmative action decisions interpreting the
Fourteenth Amendment’s Equal Protection Clause, including Grutter v. Bollinger, allow
the University of Texas to consider race in its undergraduate admissions process.
6
The
US Supreme Court, however, declined to assess the constitutionality of race-conscious
admissions policies, remanding the case to and charging the Fifth Circuit Court of
Appeals with the onus of making such determination—a resolution that may disrupt
50 years of subtle yet hopeful progression in the lives of African Americans as well
as other historically underrepresented minorities.
Specifically, although the Supreme Court has acknowledged achieving the educa-
tional benefits that flow from having a diverse critical mass as a compelling collegiate
interest, Justices in recent years have become ominously hostile towards institutions
using race-conscious admissions policies to achieve this goal. In addition, over the past
decade numerous states have legislatively outlawed racially charged preferential
programs offered by state-sponsored educational entities. The same is true in the
employment context. This is chiefly due to lawmakers, backed by state courts, reading
the Fourteenth Amendment through a narrow lens that tends not to account for the rea-
lities of minorities, that is, the perpetuated deficiency of historically underrepresented
groups in education and employment. Instead, the focus has been strictly on whether
institutional policies ‘‘mean one thing when applied to one individual and something else
when applied to a person of another color.’’
7
All said, the door now left open by the Supreme Court’s decision in Fisher welcomes
potential threatsagainst the fate of affirmative action in America. In deferring to the lower
courts the determination of whetheror not to forbid the use of race in admissions policies,
Fisher could indirectlysolidify racial imbalanceand inferiority in education.Moreover, as
a person’s education naturally coincides with their job opportunities, it is beyond mere
conjecture to suggest that the casecould fortify longstanding barriers between prestigious,
lucrative jobs and minorities, to which they have been traditionally closed. It necessarily
follows that if Abigail Fisher triumphs on remand to the Fifth Circuit, the point at which
colleges and universities and Corporate America will achieve racial critical masses shall
remain remotely unforeseeable. And contrary to the opinions of JusticeO’Connor and her
conservative successors, race will always be relevant in this country.
Stowes 293
With the end in mind, this article analyzes the conceivable implications for college
admissions policies and the potential shift in racial demographics at universities nation-
wide.
8
But it does not stop there; it looks beyond Fisher and education. It delves into the
ongoing effects that the potentially new affirmative action precedent will have on
employers’ abilities to attract ethnically and diversely qualified applicants, to achieve
critical masses, and to break down the perpetual forces of racial inferiority in the work-
place. More importantly, this article calls for employers to reevaluate their current diver-
sity programs to (1) safeguard minorities against the potential adverse impacts of the
Fisher series on educational and employment markets nationwide, and (2) to preserve
the original mission of the affirmative action movement in guaranteeing Blacks and
whites equal consideration for all of life’s opportunities.
The section Progression of affirmative action in the United States herein broadly
chronicles affirmative action policies in the United States. This section analyzes federal-
and state-based courses of action while highlighting the US Supreme Court’s nuanced
approach to affirmative action jurisprudence in the educational and employment con-
texts. The section Fisher, race-conscious diversity initiatives and beyond dissects
Fisher, first by traversing through its procedural history. Thereafter, the subsection The
effects of Fisher analyzes statistical data from flagship universities to illustrate the
considerably disproportionate numbers of Hispanics and, especially, Blacks as compared
with white students enrolled therein. This part shows that colleges, after incorporating
percentage plans into, but striking racial considerations from, their admissions policies,
have failed to shift the demographics of college classrooms anywhere near a satisfactory
level of critical mass. This section also demonstrates how the racial make-ups of college
classrooms have impacted the dynamics of diverse hiring initiatives at ‘‘flagship’’
companies and thus affected employment opportunities for African Americans, in partic-
ular. Accordingly, the latter section of Fisher, race-conscious diversity initiatives and
beyond charges employers to reassess the efficacy of their existing diversity programs
while suggesting key methods by which employers may safeguard the integrity of diver-
sity recruitment. It should be noted that this section does not specifically elaborate upon
the gender achievement gap in education or employment.
9
Nor does it request that addi-
tional statutory obligations be imposed upon private (or even public) employers with
respect to their existing outreach programs.
Progression of affirmative action in the United States
Federal initiatives
Beginning in the nineteenth century, the US Constitution prescribed the foundation by
which African Americans were to become full citizens.
10
The Thirteenth Amendment
outlawed slavery.
11
The Fourteenth Amendment guaranteed to all persons equal protec-
tion under the nation’s laws.
12
And the Fifteenth Amendment forbids racial discrimina-
tion in voting access.
13
Legislative and Presidential efforts later echoed these mandates. But the Supreme
Court has crafted nuanced opinions upon which public universities and, necessarily,
employers have struggled to fashion linear standards for reviewing race-conscious
294 International Journal of Discrimination and the Law 13(4)

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