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Respondent’s Brief: Nehalem Kunkle-Read and Samarra Watson

Respondent’s Brief: Nehalem Kunkle-Read and Samarra Watson, Lake Oswego High School

2/16/2016

Lake Oswego High School

Abigail Fisher v. University of Texas at Austin

Brief for the Respondent

Nehalem Kunkle-Read and Samarra Watson, Lake Oswego High School, Oregon

2501 Country Club Rd, Lake Oswego, OR 97034

Table of Cited Authorities:

cases

Bakke v. Regents

438 U.S. 265 (1978)…………………………..4

Gratz V. Bollinger

539 US 224 (2003)……………………………………………………………………………………………………………3

Grutter V. Bollinger

539 US 306 (2003)……………………………………………………………………………………………………………3

Howe v. Brown

319 F. Supp. 862 (N.D. Ohio 1970)……………………………………………………………………………………3

Parents Involved in Community Schools vs. Seattle School District

551 US 701 (2007)……………………………………………………………………………………………………………3

United States V. Carolene Products

304 US 144 (1938)……………………………………………………………………………………………………………3

Other Authorities

14th amendment, Constitution of the United States…………………………………………………………3,4,5

University of Washington Affirmative Action Study…………………………………………………………….4

Statement of Argument

In the case of Abigail Fisher v. University of Texas at Austin, race conscious affirmative action is consistent with the Fourteenth Amendment to the United States Constitution. In 1938, the United States V. Carolene Products case determining New Deal legislation constitutionality established different levels of judicial scrutiny in its fourth footnote. With this understanding, racial discrimination is considered under strict scrutiny and regulations must be narrowly tailored to serve a compelling state interest. This standard was established during Grutter v. Bollinger. These requirements were specified under the ruling of the Gratz V. Bollinger and Grutter V. Bollinger cases, in which affirmative action efforts were accepted as long as they did not follow a mechanistic system. In Abigail Fisher v. University of Texas at Austin, the petitioner, Abigail Fisher, argued before the court saying that her denial to the University of Texas was the result of racial discrimination, as the University’s affirmative action policy clearly violated the equal protection clause under the 14th amendment. However, we agree with the fifth circuit ruling that the University’s policy is narrowly tailored and serves a compelling state interest of developing a diverse learning community.

Argument

I. Affirmative action is established to fulfill a compelling state interest

In the 1970 case Howe v. Brown, the court held that affirmative action should be applied to equal protection and voting rights cases. Compelling state interest includes keeping citizens safe and protecting individual rights defined by the constitution. Although there is no bright-line rule defining compelling state interest, affirmative action clearly fulfills this role. Because the purpose of affirmative action is to provide opportunity to minority students who may not otherwise have the means to receive a higher level education, supporters of affirmative action argue that it serves to combat the long lasting effects of discrimination and encourage future generations from reverting back to a society divided strictly by race. The court ruled in favor of affirmative action during California vs. Bakke, stating, “Racial and ethnic classifications of any sort are inherently suspect and call for the most exacting judicial scrutiny. While the goal of achieving a diverse student body is sufficiently compelling to justify consideration of race in admissions decisions under some circumstances, petitioner’s special admissions program, which forecloses consideration to persons like respondent, is unnecessary to the achievement of this compelling goal, and therefore invalid under the Equal Protection Clause.” In 2007, the supreme court ruled that in the case of Parents Involved vs. Seattle Schools, the school district’s attempts to balance the schools with ethnically diverse students were unconstitutional because there was no compelling state interest present. However, in the case of Abigail Fisher v. University of Texas at Austin, rather than transporting students from campus to campus in an attempt to desegregate as many schools attempted following the Brown v. Board of Education decision, affirmative action could be the difference between a student receiving the opportunity to beat the odds and secure a brighter future.

 

II. The protocol for affirmative action at the University of Texas at Austin is narrowly tailored

Affirmative action policies are followed in order to promote a more diverse learning environment that promotes future equality. This goal is established by the government and the program is narrowly tailored to accomplish its purpose. A white student argued that he had not been given the right to equal protection of the laws because after he was denied from UC medical school while other minority candidates took his spot. The court found that Bakke had not been provided equal protection because the school’s goals were too quota driven. In this case, affirmative action was allowed as long as it was not quota driven.

Affirmative action policies have proven to be the only effective way to promote such diversity. Affirmative action is currently banned among all public universities in California, Washington, Michigan, Nebraska, Arizona, and Oklahoma. A study conducted by the University of Washington in 2013 revealed that minority students had a 23% drop in acceptance to schools that banned affirmative action. There are a few alternative methods to accepting minority students, however, they have proven to be unsuccessful relative to affirmative action policies. Schools have made an attempt to recruit minority students, use percentage plans, and by accepting students of a lower economic status, hoping that it will in turn help minority students. When asked whether these alternative methods were effective, Mark Long, researcher from University of Washington, stated, “they are partially helpful, but they are not fully effective in restoring the minority share that would’ve been admitted under affirmative action.” According to his research,  “41 percent of the minority share that was lost by eliminating affirmative action.” No other methods made an impact as astounding as affirmative action itself, proving that it is the only method that can effectively fulfill its purpose.

III. The equal protection clause of the 14th amendment was created with the purpose of protecting minorities

The fourteenth amendment was drafted in the wake of the Civil War in order to protect the rights of the freed slaves. It sought equal protection to the men and women who were freed and was a response to discrimination that the slaves would face after their freedom. There is a belief that slavery and the discrimination that followed, opened a gap between the minority groups that is still present. The compelling interest for schools is to reach a critical amount of diversity on their campuses.  Writing for the majority, Justice Sandra Day O’Connor wrote that the Constitution “does not prohibit the law school’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.” The Michigan school’s goal was to obtain a  “critical mass” of racially diverse students on campus, it was different from the illegal hard-line quota in Bakke. And also, very importantly, Justice O’Connor mentions that this kind of racial affirmative action is not meant to last forever, she predicted that “25 years [after this case], the use of racial preferences will no longer be necessary to further the interest approved today.”

IV. Abigail Fisher lacks standing in the Abigail Fisher v. University of Texas at Austin case

Abigail Fisher has no standing in her case against the University of Texas at Austin. At the federal level legal actions cannot be bought simply because an individual is unhappy or displeased with the outcome of a government action. Further, by the time that this case had gone to court Abigail had enrolled and began school at a different university, Louisiana State University, and graduated in 2012.  “The only thing I missed out on was my post-graduation years,” she told The New York Times in 2012. “Just being in a network of UT graduates would have been a really nice thing to be in. And I probably would have gotten a better job offer had I gone to UT.” Abigail is quoted claiming that the only harm she suffered was “probably” getting a better job offer had she gone to UT. University of Texas at Austin also states that only 5 Black/Latino students with lower grades and test scores were admitted into the university, while 42 students were white. Fisher also claimed that the 10% plan was unconstitutional, yet the court found that the case of Grutter confronted a similar program and found that “percentage plans are a complete, workable alternative to race-conscious holistic review.” Abigail’s claim that UT is seeking interest in favoring minority groups is without basis, as the schools only goal is to provide a diverse learning environment for students from different backgrounds.

 

Conclusion

In conclusion, it is clear that race conscious affirmative action is consistent with the Fourteenth Amendment to the United States Constitution. In the case of Abigail Fisher v. University of Texas at Austin, the affirmative action policy is narrowly tailored to serve a compelling state interest of providing minority students with the means to receive an education that will improve their lives and the lives of their future children. Additionally, the equal protections clause was created with the purpose of protecting the rights of the freed slaves. Today, it continues to serve to combat the repercussions from slavery.

Therefore, we respectfully suggest that the judgement of the fifth circuit should be upheld.

Nehalem Kunkle-Read and Samarra Watson

 

Radhika Subrahmanyan and Dan Tudorica Respondent Brief and Arguments

Brief:
Fisher v. Texas Respondent Brief
Oral Argument:
https://www.youtube.com/watch?v=aVRkNMGkXGY&feature=youtu.be

Appellant Brief

In the Supreme Court of the United States

March Term, 2016

 

ABIGAIL NOEL FISHER, PETITIONER

V.

UNIVERSITY OF TEXAS AT AUSTIN, RESPONDENT

 

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

 

PETITIONER’S OPENING BRIEF

 

Kelsey Talbot & Lauren Anderson

Counsel of Record

Lake Oswego High School

Room 213

Lake Oswego Oregon, 97034

(503) 534-2313

Counsel for Petitioner

 

QUESTION PRESENTED

IS RACE-CONSCIOUS AFFIRMATIVE ACTION CONSISTENT WITH THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION?

Table of Contents

QUESTION PRESENTED…………………………………………………………………. 2
TABLE OF AUTHORITIES………………………………………………………………. 4
STATEMENT OF ARGUMENT……………………………………………………….. 5
ARGUMENT I: STRICT SCRUTINY………………………………………………… 6
ARGUMENT II: EQUAL PROTECTION CLAUSE…………………………… 7
PROPOSED STANDARD……………………………………………………………….. 10
CONCLUSION………………………………………………………………………………… 11

Table of Cited Authorities

Cases

Adarand Constructors Inc. v. Pena,
515 U.S. 200 (1995)………………………………………………………………………………………….. 8, 9, 11
Brown v. Board of Education of Topeka,
374 U.S. 483 (1954)……………………………………………………………………………………………….. 7, 9
Fisher v. University of Texas at Austin,
133 S. Ct. 2411 (2013)………………………………………………………………………………………….. 6, 11
Gratz v. Bollinger,
539 U.S. 244 (2003)……………………………………………………………………………………………….. 8, 9
Grutter v. Bollinger,
539 U.S. 306 (2003)……………………………………………………………………………………………….. 5, 7
Parents Involved in Community Schools v. Seattle School District,
551 U.S. 701 (2007)……………………………………………………………………………………………….. 8, 9
Regents of University of California v. Bakke,
438 U.S. 265 (1978)…………………………………………………………………………………… 6, 7, 8, 9, 11
United States v. Carolene Products Company,
304 U.S. 144 (1938)…………………………………………………………………………………………………… 6

Other Authorities:

Civil Rights Movement…………………………………………………………………………………………………….. 6
Cornell University Law School…………………………………………………………………………………………. 6
Fourteenth Amendment to the Constitution……………………………………………………….. 2, 5, 7, 8, 11
Martin Luther King, Jr. – “I Have a Dream”………………………………………………………………………… 6

Statement of Argument

The Fourteenth Amendment of the United States Constitution does not allow race conscious affirmative action in higher education admissions. The Fourteenth Amendment’s Equal Protection Clause protects individuals against racial discrimination. The Equal Protection Clause specifically states that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” The precedent for affirmative action put forth in Grutter v. Bollinger 539 U.S. 306 is that of the strict scrutiny standard that must be applied to all matters of racial discrimination. The University of Texas at Austin’s (“UT”) admissions policy does not fit the standard that must be met: narrowly tailored and a compelling state interest. UT’s justification for using affirmative action to diversify the student body is setup in the form of a quota system. UT’s definition of classroom diversity is: two African-American students; two Hispanic students; and two Asian-American students, originally proposed in UT’s “Proposal to Consider Race and Ethnicity in Admissions” (the “Proposal”). Diversity under this definition is unobtainable and fails to pass strict scrutiny because of the use of a quota system. Although diversity is a compelling state interest, UT’s admissions policy, as described in the Proposal, is a quota system and does not consider diversity to be of top importance, otherwise the university would put a “critical mass” system into place. UT’s current admissions system violates the Equal Protection Clause of the Fourteenth Amendment by determining an individual’s admission based on their race to satisfy UT’s racial quota.
 
 

Argument

 

  1. I.                        UT’s policy does not comply with the strict scrutiny standard.

Before even the rise of the Civil Rights Movement in the 1960’s, minority groups have been striving to create a foundation of equality in America. Martin Luther King Jr. advocated, “I look to a day when people will not be judged by the color of their skin, but by the content of their character.” (I have a dream speech). UT’s current admissions system counteracts modern equality philosophy, and further, is a violation of the strict scrutiny standard. Currently, racially discriminatory policies by the government must satisfy strict scrutiny, which was first alluded to in United States v. Carolene Products Co., 304 U.S. 144. All cases must pass a two part assessment in order to be constitutional regarding race: narrowly tailored and a compelling state interest.
The current standard that universities must uphold when considering racial classification for admission is narrow tailoring, “meaning no broader than necessary to achieve its goal” (Cornell). UT has put into place a system of affirmative action that amounts to a de facto quota system which was ruled unconstitutional in Regents of University of California v. Bakke, 438 U.S. 265. UT currently defines classroom diversity as at least, “more than one African-American student, more than one Hispanic student, and more than one Asian-American student” in each classroom. Fisher v. University of Texas at Austin, 133 S. Ct. 2411. UT’s admissions policy thus violates the Bakke prohibition against a quota system, wherein diversity is only reachable when there are six minority students in each class. This six student quota was originally decided from UT’s Proposal which was conducted by only looking at race and no other factors. This un-holistic approach causes UT to disavow any admissions factors other than race when striving to diversify the student body.
It is unclear why UT created its admissions system that considers race as a factor. They stated just two justifications: have UT mirror the diversity demographics in the state of Texas; and “classroom diversity”. The Texas Department of State Health Services estimated the Texas population in 2008 as approximately 11 million Caucasians, 2.8 million African-Americans, and 9 million Hispanics. UT’s justification for affirmative action is not upheld with the actual data taken, and as a result, the diversity of Texas is not fairly represented. The true population mean of Hispanics in Texas is far above the projected population represented in the classroom diversity quota. If the minority groups of Texas were fairly represented at UT, then the critical mass theory affirmed in Grutter would be used to ensure the system is narrowly tailored. Grutter also affirms that, “To be narrowly tailored, a race-conscious admissions program cannot use a quota system…”
The Fifth District Court and United States Court of Appeals have deemed UT’s affirmative action system narrowly tailored because it is a virtually holistic system and is periodically reviewed (App. 307a-08a, 313a-14a.). When data is observed, such as the 2008 Texas population sample, the representation of minority races is not proportionate to that of the quota set by UT to establish diversity. UT’s quota system is a clear violation of the strict scrutiny standard and does not pass the narrowly tailored requirement. UT fails to provide sufficient supporting evidence for using racial preference in admissions.

  1. Affirmative action violates the Equal Protection Clause of the Fourteenth Amendment if it is not narrowly tailored.

The Equal Protection Clause states that no state shall, “…deny to any person the equal protection of the laws.” While the Fourteenth Amendment’s original intention upon ratification was the rights and liberties of African-Americans, the U.S. Supreme Court has interpreted this clause to apply to all racial discrimination.
Leading the wave of equal protection cases was Brown v. Board of Education of Topeka 347 U.S. 483, stating that separate but equal was inherently unequal. This case equalized the education system by integrating schools and guaranteeing the same standard of education for white and black students.
Twenty years later, the case of Bakke held that quota systems, even if used in the interest of diversity to carry out affirmative action, are unconstitutional because they were too mechanical, and applicants such as Bakke got into the medical school or were rejected solely on the basis of race. Universities were allowed to consider race when evaluating prospective students for admission, but the use of quotas was strictly forbidden.
In Gratz v. Bollinger 539 U.S. 244, the Supreme Court held that the University of Michigan’s preferential treatment for minorities in undergraduate admissions violated the Equal Protection Clause. The automatic awarding of one-fifth of the points needed to guarantee admission to every single “underrepresented minority” applicant solely because of race was not narrowly tailored and did not provide the individualized consideration for admission considered in Bakke.
In the case of Adarand Constructors Inc. v. Pena 515 U.S. 200, the Supreme Court ruled that racial classification, imposed by the federal government, must pass the strict scrutiny standard, requiring narrow tailoring and a compelling state interest. Under the federal contract, the prime contractor would receive additional compensation if it hired small businesses controlled by “socially and economically disadvantaged individuals.” Thus, there was an incentive to hire a business controlled by a person of minority status. Furthermore, this ruling held that race is not a sufficient condition for an assumption of disadvantage and the award of favored treatment. In addition, proof of past injury does not in itself establish the suffering of present or future injury.
In Parents Involved in Community Schools v. Seattle School District 551 U.S. 701, race was used as the second most important factor when determining a tie breaker. The Supreme Court recognized that the Seattle School District had a compelling state interest to achieve diversity and avoid racial isolation, but struck down the district’s assignment plan finding that it was not narrowly tailored. Furthermore, the Court held that the tiebreaker plan was actually targeted toward racial balancing instead of educational benefits from racial diversity.
The similarities in all of these cases are that they unequally apply the law to those of different races and ethnicities. The key word is equal. The very nature of affirmative action seems motivated by a desire to grant reparations for past crimes and wrongdoings by the United States government. Nevertheless, affirmative action, ironically, is inconsistent with the Fourteenth Amendment and violates the Equal Protection Clause.
Brown v. Board guaranteed that students of all races would have access to the same level of education, attempting to ensure that the Equal Protection Clause would be upheld. In Bakke, the Supreme Court struck down quotas because it didn’t allow for students to be evaluated individually. In Gratz, the automated point system based on race mirrored the quota system’s lack of individual consideration, and students were admitted, or not, solely based on their race. Similarly, UT’s classroom quota system lacks the same individual consideration of applicants. Moreover, in Parents v. Seattle, the lack of narrow tailoring in their tiebreaker plan, where race is a deciding factor in what school a child attends, mirrors that of UT’s affirmative action system. Adarand parallels UT’s affirmative action system. In both cases, minorities were awarded favorable treatment, whether it was in consideration for college admission or an offer for employment. Furthermore, under the Adarand ruling, race is not a sufficient condition for the award of favored treatment, i.e. affirmative action. Affirmative action, without narrow tailoring, systematically guarantees that those of a minority race are given favorable treatment, solely on the basis of race.
 
 

Proposed standard

            Under the standard of strict scrutiny, all racially discriminatory policies set by government or a college admissions office must pass narrowly tailored and compelling state interest.
 

Conclusion

The affirmative action system at UT does not comply with the strict scrutiny standard. Furthermore, affirmative action violates the Equal Protection Clause of the Fourteenth Amendment. UT has created a quota system in order to define diversity. This system is unconstitutional under Bakke because all quotas were deemed unconstitutional. Under strict scrutiny, UT is not narrowly tailoring its affirmative action system. In addition, having a system of affirmative action that is not narrowly tailored is not consistent with the Fourteenth Amendment and violates the Equal Protection Clause. Under equal protection, all U.S. citizens are guaranteed equal protection under the law. Consequently, UT’s system of affirmative action specifically favors those of a minority race, giving them additional privileges above the norm. This results in unequal treatment under the law. Remaining consistent with the Supreme Court’s decision in Adarand v. Pena, race is not a sufficient condition for the award of favorable treatment, and affirmative action amounts to favorable treatment.
In the case of Fisher v. Texas, the Supreme Court should rule that the UT’s current system of affirmative action is unconstitutional. UT’s use of a quota system is consistent with the precedent set in Bakke, which forbids the use of quotas to guarantee diversity. Furthermore, the Supreme Court should rule that a system of affirmative action that is not narrowly tailored violates the Equal Protection Clause because it grants minority students admission to college solely on the basis of race, without consideration on an individual level. The Supreme Court should rule in favor of the respondent, Abigail Fisher because UT’s system of affirmative action clearly violates the strict scrutiny standard and the Equal Protection Clause.

Fisher v. University of Texas Respondent Brief, Lake Oswego

Abigail Fisher v. University of Texas at Austin

Kiara Green and Leah Krenek

Link to oral argument video: https://youtu.be/u7-yPQnQ9cs

Table of Cited Authorities

Grutter v. Bollinger, 539 U.S. 306 (2003)

Regents of the University of California v. Bakke, 438 U.S. 265 (1978)

U.S. Department of Education laws & Guidance

for the Collection of Federal Education Data (August 2008)

University of Texas Statement on Equal Educational Opportunity

Parents Involved in Community Schools v. Seattle School District (2007)

Statement of Argument

The University of Texas at Austin’s race conscious admissions program is constitutional under the fourteenth amendment. The decision made in Grutter v. Bollinger allows higher education institutions to use race as a factor of admission as long as their use of it is “narrowly tailored” and they have “compelling interest.” Following the reasoning of Regents of the University of California v. Bakke, UT Austin can use race in their admissions process because they are trying to promote diversity within the student body. In addition, the University’s practice of asking a student’s race in their application is required for federal eligibility and accountability reports. Abigail Fisher was not required to answer this question, but she choose to. More importantly, Abigail Fisher does not have any proof that minority students were admitted solely on the basis of their race, and she was denied because she was caucasian.

Arguments

  1. The University of Texas at Austin is allowed to use race in considering applicants based on the decision in Grutter v. Bollinger.                                                              The case of Grutter v. Bollinger allows higher level education institutions to consider race as a factor of admissions as long as they have a “narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body,” said Justice Sandra Day O’Connor, who wrote for the majority. The University of Texas at Austin’s diversity statement says, “we embrace and encourage diversity in many forms, striving to create an inclusive community that fosters an open and supportive learning, teaching and working environment.” The university is creating a diverse student body in order to promote a stronger and more well-rounded campus. They have compelling interest to obtain a critical mass, as well as a narrowly tailored system.

  1. The University of Texas at Austin is not using a quota system and therefore can consider race.                                                                                                                   The top ten percent rule is a way to achieve a holistic critical mass by taking into account a student’s ranking in high school rather than their race. This system only looks at the student’s grade point average, not the color of their skin. If the University was using a quota method to obtain a critical mass, similar to the one used in the Regents of the University of California v. Bakke, then the school would be in violation of the equal protection clause. But the University of Texas at Austin does not  have a specific number of minorities they accept, nor do they reserve application spots for minorities. They are choosing to automatically admit the top ten percent of high school students in Texas. This system functions to represent students throughout the state and increase regional diversity by accepting a quantity of students from each high school. In Bakke, the use of a quota system where spots are reserved for minorities was declared unconstitutional. But the court also said that the school could still use race in consideration for admission since they had “compelling interest in encouraging diversity in its student body.” The University of Texas is following this precedent and is using race as one of the many factors they consider; a practice which is constitutional.

  1. Answering questions regarding race on a college application is not required.   Abigail Fisher chose to answer the question on UT’s application regarding her race. She was not forced to respond. When reviewing the application, questions about your name and date of birth are required, and are denoted with a small red star. However, the question asking the applicants’ race does not display a red star, and therefore is not required. Fisher volunteered information about her race, thus making it known to the University . Questions regarding race on college applications are required for federal eligibility and accountability reports. According to the U.S. Department of Education, these regulations were revised in 2007, allowing students to choose multiple ethnicities, making them feel less limited. The U.S. Department of Education says “As a general matter, while educational institutions and other recipients are required to comply with this guidance, individuals are not required to self-identify their race or ethnicity.” This makes it very clear that answering race and/or ethnicity questions are optional. If Fisher had chose to leave the question blank and not identified her race, then she likely would not feel that racial discrimination was the reason for her denial. The University of Texas did not place a question regarding race on their application to deter or discriminate against races, they simply are complying with regulations in order to gain crucial information to improve their diverse student body.

  1. Fisher is arguing that it is unfair that her fellow peers were accepted and she was denied, even though each individual circumstance and acceptance is unique.

The goal of the University of Texas is to be representative of a broad range of perspectives by having a diverse student body. In order to do so, each individual is looked at and judged on a case by case basis. Abigail Fisher, however, believed that because the color of her peer’s skin differed from her own, that alone gave her reason to infer that race was the sole factor in determining her acceptance. It is impossible to directly compare identical circumstances because each individual is unique. Taking this into consideration, the University of Texas has come up with a system to look at various components of an applicant’s background. Each student is looked at and given a point score based on their grades, background, and involvement to ensure a fair judgment is given. Ms. Fisher is wrongly accusing the University of Texas of breaking federal law. The school is not discriminating on the basis of race, it is simply using race as one of the many factors that dictates if an applicant is qualified to be admitted. The University is taking a holistic approach to better promote diversity in their school. Additionally, the point system in place allows everyone to be equally judged on the same scale which does not violate the 14th amendment, but rather supports it in its entirety.

V. Affirmative action in College admissions is completely constitutional as long as it pases the strict scrutiny test.

The strict scrutiny test allows policies to be tested to ensure they are compliant with the equal protection clause of the fourteenth amendment. Disputes regarding race are suspect classifications and are always examined under strict scrutiny. To declare a system constitutional and pass the test, the state must prove that there is a compelling state interest to satisfy the reasoning behind such a policy, and that the program is narrowly tailored to avoid discrimination. In the case of Fisher v. University of Texas, the school has shown complete compliance with these regulations and therefore should be granted the right to continue on with such practices. The University finds it exceptionally compelling to support the notion of diversity in higher education. It is for this reason that the school implemented the top 10% rule to increase admittance from all high schools and comprise a student body made up of the highest achieving students from various areas around Texas. The school takes a holistic approach to the acceptance of students who do not fall under this category. They look at a variety of factors, race being one of them, and make a decision as to whether or not an applicant is fit for admittance. Race is one of the many factors that is taken into account which means the precedent set by Parents Involved in Community Schools v. Seattle School District does not apply. In this case, affirmative action was struck as race was the sole factor in determining admittance and was not “narrowly tailored” enough. At UT Austin, race is looked at in accordance to other factors such as test scores, gpa, and involvement. Therefore, the school does indeed pass the strict scrutiny test allowing them to use race as one of the many components they look at to decide admittance to achieve a diverse “critical mass”.

Conclusion

UT Austin has stated that they are  “committed to an educational and working environment that provides equal opportunity to all members of the university community”. They fulfill this statement by conducting automatic admission of the top 10% of each class of High School students from Texas. Additionally, admittance to the college is narrowly tailored as seen in the fair point system administered to each applicant. Both of these mechanisms for admittance are consistent with the 14th amendment, and are beneficial in order to achieve a critical mass of diverse students. Abigail Fisher’s rights were never infringed upon, she simply could not meet the standards set to be admitted. For reasons stated above, the existing standard should be affirmed as the University of Texas has complied with all guidelines and has promoted a diverse student body with equal opportunity for all applicants. Affirmative action laws were written to supersede equal rights laws. The school has applied the affirmative action laws to its policy of selecting students keeping race in mind, and this overrides the perceived “discrimination” for the school to give minority treatment.

Fisher v. University of Texas Respondent Brief – Maia Lee and Neeta Rao

Brief: Fisher v. Texas Respondent Brief
Oral arguments: https://youtu.be/K3xsx2qII20
 

Appellant Brief Stephanie Garcia and Pamela De La Cerda Negative Speech

Speech  https://youtu.be/UtXb4BhjH1w
 

Appellant Brief Abigail Fisher

Appellant Brief
Stephanie Garcia and Pamela De La Cerda
Del Valle High School, Del Valle, Texas
 
Table of Cited Authorities
Fourteenth Amendment
Grutter v Bollinger, 539, U.S. 306 (2003)
Hopwood v. Texas  1996
House Research Organization SB 175 Report 2009
Regents of Univ. of California v. Bakke, 438 U.S. 265 (1978)
Rep. James G. Blaine comments, 44th session of Congress, Freedman Bill, 1875
Texas HB 588
University of Minnesota -Morris Admission Office Report 2003

Statement of Argument

Section One of the 14th Amendment states, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
A 2008 graduate of Stephen F. Austin High School in Sugarland Texas, Abigail Fisher, applied to the University of Texas during her senior year. Fisher was in the top 12% and had a 3.59 GPA on a 4.0 scale, plus she had an 1180 score on her SAT.   UT had adopted Texas HB 588 that allowed state universities to admit the top 10% of each high school graduating class automatically. Eighty-one percent of the 2008 freshman class at UT entered under this Top Ten rule.
Because Fisher wasn’t in the Top Ten at SFA H.S. she had to apply for admissions and was later denied admission to the University of Texas.  The University of Texas had set up a new criteria after Grutter v Bollinger which included racial background as a factor.   Fisher contended that because preference was given to minority candidates, she was denied admission to the school on the basis of her race which was against the 14th amendment.
 Resolved:  Is race conscious affirmative action consistent with Fourteenth Amendment to the United States Constitution?
Case Arguments for the Appellant
The Appellant in this case, Abigail Fisher, has five major arguments against the proposition that race conscious affirmative action is consistent with the Fourteenth Amendment to the United States Constitution.

I.                The Fourteenth Amendment Can Not Be Used Against Itself

First, there is the Fourteenth Amendment itself.  The XIV Amendment Section 1 states, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”  In this process of college selection, if a college or university were going to use  race conscious affirmative action, consistent with Fourteenth Amendment to the United States Constitution, they would have allow each person that was denied admission to their school full due process and allow them the ability to see exactly (full transparency) why they were denied.  Without transparency and with race as part of the criteria, the Appellee cannot claim they acted in accordance with the Fourteenth Amendment simply by excreting that statement without showing the exact due process it uses for every single person who applied to that school.  Compliancy with the Fourteenth Amendment is essential here because the University of Texas is a state run institution of higher learning. By denying a person admission without showing complete transparency it is in violation of the due process clause of the Fourteenth Amendment.

II.              The Use of Race Goes against the Fourteenth Amendment

Second, the use of race as a qualification for admission goes against the purpose of the Fourteenth Amendment in the first place. This idea of taking from one group and giving to another group goes against the intent of the Fourteenth Amendment. The Fourteenth Amendment was an outgrowth of concern over the treatment of the freed males by the Southern States.  In 1864 during a debate on the enactment of the Freedmen’s Bureau, Representative Thomas A Hendricks Democrat of Indiana, expressed these exact beliefs on the unconstitutionality of such legislation.  He believed that affirmative action measures in the Freedmen’s Bureau legislation, particularly the taking of ex-Confederate land for the use of freedmen’s education, was beyond what Congress was constitutionally capable of doing and a violation of the separation of powers.  According to the Congressional Record, “The Select Committee on Freedmen’s Affairs was established on December 6, 1865, with the mandate that “so much of the President’s message as relates to freedmen shall be referred; and all reports and papers concerning freedmen shall be referred to them, with the liberty to report by bill or otherwise.”  At the opening of the second session of the same Congress (39th), the committee was continued as a standing committee with the same jurisdiction.”  The Freedman Affairs Committee existed as a separate Select Committee under the House Judiciary Committee until 1875. At the opening of the 44th Congress (1875), Representative J. G. Blaine, Speaker of the House, observed that the recent amendments to the Constitution ensured “that there is no longer any distinction between American citizens; that we are all equal before the law; and that all legislation respecting the rights of any person should go through the regular standing committees.”  This is an essential argument that can be applied here.  Eighty-nine years before the Civil Rights Act of 1964, the U.S. Congress noted that special treatment for people should no longer go through a special committee but it should go through the entire Congress.  Note that Speaker Blaine was not saying that equality was a reality but he was saying that equal treatment of all people was reality.  Speaker Blaine was saying that temporary use of inequality to make things more equal should become much more transparent.  By using race as a qualification for admission, even if it’s a qualification, the University of Texas created a compliancy issue with the due process part of the amendment.   Accordingly to afford one person equal access is great but to do it because you deny another due process is not legal according to the exact law Appellee is trying to uphold here today. You simply cannot claim you are promoting equal access or equal opportunity for some by denying other people that same access because of their race without due process.
III.   What Is The Purpose of the Admissions Office and Admission Selection

Third, what is the purpose of the admissions selection in the first place?  If the purpose of the admissions selection is to select highly qualified candidates who will attend the University or College then should race even be a question?  Is the University looking for the best possible candidate to attend or are they looking for something different?  If they are looking for quotas, diversity numbers, or certain ethnic groups- then make that a part of the official guidelines of the school or University.  The Admissions Office of the University should be able to do their job without a Federal Government telling them who to select or not to select.  This is not an Admissions Office it is an Office of Social Engineering.  If we are truly to become a color blind society we cannot allow race to be a factor here.  Just like Congressman Hendricks argued in 1864, you cannot take away from one and give to another and call it even.  This is not due process.  This is not equal opportunity for all.  This is not a way to run a college, University or Nation.  The University of Minnesota -Morris Admission Office explained their purpose in 2003, “The function of the Office of Admissions is to contact, admit, and enroll prospective students while building the image of UMM. In conjunction with this function, the Office of Admissions develops programs that will enable these students to secure the benefits of a liberal arts education at UMM, regardless of their family resources. Also, it is our goal to enroll students with a profile that equips them to meet the challenges of a high quality, undergraduate institution.”  Note that the goal is enroll students with a profile that equips them to meet the challenges of a high quality, undergraduate education- not promote social engineering.  It is when we try to promote the social engineering that we take away from both the student and the University.
IV. The Top Ten Percent Rule Is Discriminatory And Against the Fourteenth Amendment
Fourth, the entire Top Ten Percent Rule is discriminatory and against the Fourteenth Amendment itself.  The top 10 percent rule is a provision that allows for all Texas high school students who finished in the top 10 percent of their graduating class to be guaranteed admission at any public university in the state.  In 1997, the Texas Legislature approved HB 588 by created by Rep. Irma Rangel, D-Kingsville. This bill was a direct response to the 1996 Hopwood v. Texas decision by the Fifth Circuit Court of Appeals, which prohibited Texas universities from considering race in their admissions and financial aid decisions.  Rep. Rangel wanted to promote ethnic diversity at Texas colleges and universities.  The concept behind that fact was that ethnic diversity was becoming larger and larger in high schools all across the state of Texas so if more high school students were to attend College then more of those students would be diverse.  The problem was that this concept was based on some faulty science.   The Top Ten percent sounds equal but is it really?  Ten percent of a graduating class of 30 would be three and Ten percent of graduating class of 1500 would be 150 but no one considered would the people in group of 30 be as qualified as the people in the group of 150?
This was the exact problem that was a subject of UT- Austin complaint in 2009.  UT had worked with the Texas Legislature to pass SB 175.  In fact they testified in committee for the bill.   The House Research Organization Report 2009 stated, “SB 175 would maintain the benefits of the Top Ten Percent Law while giving universities the flexibility they need to carry out their duty to all students in Texas. The admissions process of any university is an exercise both in selecting qualified students with a high probability of achieving success and in crafting an entering class that serves the university’s mission. Higher education experts and administrators are well aware of the urgent need in Texas to expand higher education opportunities to all citizens, especially those who have historically suffered from discrimination. Since the enactment of the Top Ten Percent Law, however, universities have been required to admit all applicants who graduated in the top ten percent of their high school class, which has had significant negative consequences that the bill would address. Texas universities should address the needs of all Texans, including the other 90 percent. Many topnotch students whose GPA does not rank them in the top ten percent are being overlooked, even though they are extremely well-prepared and successful students. This is especially true for those in large urban high schools where academic competition is fierce. Until additional tier one institutions are established in the state, the law is forcing many top-notch students who are not in the top ten percent to out-of-state universities, creating a brain-drain of excellent students that should be in Texas institutions. Current law requires state universities to admit certain students based on a single criterion—class rank—that limits an institution’s flexibility and creates a one-dimensional, unhealthy academic environment.
According to a report from the National Association for College Admission Counseling in 2006, the top four factors in admission decisions at all colleges and universities are: grades in college preparatory courses; the strength of curriculum; admission test scores; and overall grades. Class rank is listed 6th in the order of importance. Basing admission on this single criterion deprives a campus of a well-rounded freshman class that reflects the diversity and excellence of the state. Texas’ flagship campuses are losing control of enrollment through the number of slots they must dedicate to top ten percent admissions. One of the state’s flagships schools, the University of Texas at Austin, is particularly burdened by the current law. According to university officials, among incoming freshman students from Texas high schools, 81 percent were automatically admitted in the fall of 2008. By 2009, that number is expected to be 86 percent. If the law is not amended, by 2013 UT-Austin would be forced to reject all high school applicants who were not top ten percent graduates. In 2008, about 26,000 high school students graduated in the top ten percent of their class, and UT-Austin simply could not handle all of them if they applied. An entering freshman class at UT-Austin is from 7,000 to 7,200 students — a number that university officials do not want to increase. Increasing the size of the freshman class would be an irresponsible decision because all undergraduates would suffer. It would not be academically responsible to increase the number of students at UT Austin when its student-to-faculty ratio already is too high. Other peer institutions have a much lower student to faculty ratio than UT-Austin. The Top Ten Percent law was enacted to respond to the Hopwood decision that said race could not be used as a factor in college admissions. The Legislature struggled for a solution that was merit-based and fair. Now that the U.S. Supreme Court has decided that race can be an element in a list of admissions criteria, universities no longer need such a rigid policy to help promote diversity.”
Note this last sentence.  The University of Texas cannot have it both ways.  They cannot argue that race should be a qualification then in the same breath say it isn’t.   The University of Texas asked the Legislature to do nothing more than what Abigail Fisher is asking today- to do what is fair and right.  It is not fair or right to allow to unprepared students automatic admission to college and let well prepared students not attend.  All we are asking for here is the same scrutiny that University of Texas asked the State Legislature in 2009.  That is fair correct?  If the University of Texas noted that the burden they faced in 2008 (the year that Abigail Fisher) would have entered as a freshman was 81% (Top Ten Automatically Qualified Freshman) they would then have to agree with in 2015 that was burden for them.  Instead in 2014 the University of Texas argued UT Austin argued that Fisher lacks standing because (i) she graduated from another university in May 2012, thus rendering her claims for injunctive and declaratory relief moot, and (ii) there is no causal relationship between any use of race in the decision to deny Fisher admission and the $100 application fee—a nonrefundable expense faced by all applicants that puts at issue whether Fisher suffered monetary injury.
Both of these arguments are key to this particular Appellant point here.  Cross apply that fact that the University of Texas testified before the Texas State Legislature in 2009 that Top Ten Rule needed to be changed.  Cross apply the fact that Admission Office should be allowing students who are to successfully graduate as their candidates to attend their school.  Cross apply the fact that by graduating from another institution of higher learning- Abigail Fisher took apart the entirety of the University of Texas case stating that her scores were not high enough to insure that she would do well in school.  Abigail Fisher is the best reason why the University of Texas was able to lower its cap- the State Legislature wanted to attract students like Abigail Fisher to their campus.  She graduated within four years, sued a major University and has gone to the U.S. State Supreme Court twice.  What other students in the freshman class of 2012 that entered the University of Texas in the fall of 2008 can say this?  The answer is none.  The best reason to vote for Abigail Fisher is that she actually proves what the University of Texas was arguing in 2009- the Top Ten Rule is discriminatory and not in the benefit of the University of Texas or their students.
V. The Unintended Consequences Of Laws and Court Cases Results In More Discrimination
Fifth, the unintended consequences of the aftermath of  HB 588 and SB 175, Top Ten Rule,  and  Grutter v Bollinger are seen in increased discrimination for the very students that these alleged rules or bills were trying to help.  In 2001, Texas Monthly Magazine published an article by Patricia Hart, entitled The Imperfect 10.  The opening paragraph of the article could easily be as relevant today as it was almost fifteen years ago, “Twelve years ago Fort Worth attorney William D. Ratliff scouted the local schools to find the best environment for his son, who was starting kindergarten. He settled on Trinity Valley School, a private school renowned for its rigorous curriculum and small class sizes. It was the natural choice for a father determined to provide the best education for his son. Last year Ratliff removed his son from Trinity Valley and enrolled him for his senior year in Arlington Heights, the public high school for Ratliff’s southwest Tarrant County neighborhood. Why the upheaval? Because Trinity Valley doesn’t rank the 87 students in its graduating class, his son couldn’t be in the top 10 percent. But at Arlington Heights, the younger Ratliff’s grade point average will easily earn him a spot in the top 10 percent and the precious entitlement that comes with a high class ranking.”  Some parents and some high schools have become super competitive.   These schools are offering their students’ opportunities like college level classes in almost areas- P.E., electives, Foreign Languages, and all the core classes. Other schools are offering Early College Start- obtaining an Associate’s Degree in College even before you graduate from High School.  Still other colleges are offering programs that offer opportunities for almost a three years’ worth of work in college for their high school graduates.  Instead of making things more equal HB 588 and SB 175 have made things more uneven and the unintended consequence of race consciousness admissions has been to hurt schools that are poor or unable to offer all of these other programs.  This includes many inner city poorer high schools and the poor rural high schools all across the state of Texas.  The untold story here is that if you go to program that offers you a great deal- you will learn a great deal more if you go to school that offers you not nearly as much- you can still get into the school because of the Top Ten rule but you chance of graduation from that institution is diminished.  It is condescending to minorities to say they need affirmative action to succeed. When you give preferential treatment to minorities in admission or hiring practices, you’re in effect saying “You’re not smart enough or incapable of achieving on your own, so let me help you”. It is condescending and insulting to imply that minorities cannot achieve their goals through hard work and ability.  We as a state cannot and should not do this.  It demeans true minority achievement; i.e. success is labeled as result of affirmative action rather than hard work and ability. Ask Condi Rice, Colin Powell, Barack Obama, Oprah Winfrey, or Dr. Ben Carson, Montel Williams,  Herman Cain how they got to where they are — hard work or affirmative action? All achieved their positions through hard work, and because they’re bright and articulate. My guess is that they would all be offended if you said they got to where they were strictly because of affirmative action. The same can be said of minority doctors, lawyers, business leaders, etc. Too often, their achievements are demeaned by people who believe preferential treatment got them to their current positions. Minorities must then work twice as hard to earn respect.  If the purpose of an admissions office is to admit students who can be successful in studying at the University- then let them do their job.  If there is not enough minority students attending the University- go out at recruit, go out and change the failing seconding education programs of the blighted inner city urban areas.
How can students who come from poverty and limited opportunities compete against people who have unlimited opportunities- the answer is a difficult one to face and much more difficult to answer.   They can not do this with affirmative action.  They could do this with a better education.  The real discrimination here is against the poor people who have to send their students to public schools, who think that their students who prepared to go to college because they were accepted only to find out that once in college they were not prepared.  This is the discrimination that State and the University of Texas should be addressing.  Why do we allow in our society our tax dollars to support state institutions which reinforce discrimination?  High Schools that provide their students with second class educations and Universities that reinforce this by simply complying with the laws passed by the State Legislature that they were supporting.  No child should be discriminated against in the United States.  These are not just our words but the words of the Speaker of House in 1875 when he said, “There is no longer any distinction between American citizens.”
 
VI.   Prayer
We pray that you vote against the lower court ruling and uphold the rights of Abigail Fisher who has done nothing but fought of the rights of students across this great state and nation to stand up and say no to discrimination.  Discrimination by poor schools, discrimination by race, and discrimination by failure of our institutions of higher learning to be transparent and upfront with parents, students, and tax payers- the University of Texas clearly should have admitted Abigail Fisher in 2008.  Her graduation from another University in 2012 proved this.  The University of Texas in 2009 lobbied and changed the Top Ten Percent rule because they thought it limited their ability to attract good candidates. These are not our words these are their words and you know we agree with them.  After weighing these facts the only conclusion can be to vote to end this discrimination right here and right now and vote for Abigail Fisher
Respondent-Mach, Cain, Elkins, WV

Student Name: Alex Mach, Brendan Cain
Respondent


Elkins HS, Elkins, WV
https://www.youtube.com/watch?v=mroFk7TwPH0


Table of Cited Authorities
 I. Legislative History
II. Fourteenth Amendment
III. Regents of the University of California v. Bakke
IV. Grutter v. Bollinger
V. Parents Involved v. Seattle
VI. Fisher v. University Of Texas
VII. Ricci v. DeStafano
 
Statement of Argument
 
Abigail Fisher v. University of Texas at Austin has already been decided, multiple times.  It has been decided in cases such as Grutter v. Bollinger, Parents Involved in Community Schools v. Seattle School Dist. No. 1, Regents of the University of California v. Bakke, and again when the Fisher case was heard by the U.S. District Court for the Western District of Texas, and twice when the case was heard in the Fifth Circuit Court of Appeals.  In all of these cases, it was ruled constitutional for colleges and universities to use race as a factor when admitting students, especially because “racial diversity can be a compelling government interest in university admissions.”  Having a more diverse student population also encourages insight into different communities.
 
Argument
 
I. Legislative History
The questions raised by this case have been argued multiple times in American history since the aftermath of the Civil War.  Passed on March 3rd, 1865, the Freedmen’s Bureau was one of the first government funded assistance program in The United States and offered assistance to newly freed slaves and white families fleeing the South.  The goal of these early assistance programs was to help the freed slaves and refugees survive in a very discriminatory, racist society.  The Freedmen’s Bureau did disappear due to lack of funding in the late 1870’s, but assistance for African Americans did not end then.  Howard University is a government funded private school whose aim was to provide higher education for the freed slaves.  By giving these underprivileged African Americans college level educations, it better provided them to provide for themselves and their communities.  The University of Texas is doing something similar by giving extra consideration to race, minority applicants they are providing them a better way to provide for themselves.
 
Throughout American history, especially during the Reconstruction-Era of history, laws have been passed to ensure that all citizens are treated equally and are given the same rights and benefits, regardless of race or privilege.  In the 1860’s and 1870’s, programs were started, funded, and run by the government in an attempt to give everyone equality.  In the 1964, the Civil Rights Act of 1964 passed, reinforcing and spelling out the ideals set forth in the Fourteenth Amendment.  The Supreme Court did not rule against these laws and actions to support equality among the people.  To take away college’s ability to use race as a factor in admission, would be to take away another way for minorities to be successful and equal in reality, rather than just on paper.
 
II. Fourteenth Amendment
The Fourteenth Amendment of the Constitution states that all native born or naturalized citizens are entitled to “equal protection of the laws.”  All citizens of the United States are entitled to the same opportunities and experiences and if some of those citizens are deprived of those opportunities through racism, financial hardships, and discrimination, it is the responsibility of the state to assist those who are being discriminated against.  Everyone is created equal in the eyes of the law, but people are not born into equal situations.  The Fourteenth Amendment was established in order to help ex-slaves truly become citizens.  Standardized test scores are not the most accurate predictors of student achievement.  Standardized tests reflect how well the student takes tests and how well the school they attended prepared them.  When ethnicity and background are not factored into the college application process, many smart, capable students are denied access due to attending schools with higher poverty levels and being ill prepared for the standardized tests.  Through no fault of their own, these children don’t get the chance to show their true potential.
 
Imagine two average students who go to different public schools, one who lives in a nice school district and one who lives in a low income school district.  Statistically, in Texas, in most of the larger cities, minorities make up a larger percentage of the impoverished population than white citizens (http://www.texastribune.org/library/data/demographics-poverty-texas-2011/).  The student from the poorer school will statistically be more likely to have a lower standardized test score than the student from the higher income school district.  The students of these lower income school districts are at a disadvantage when it comes to standardized testing.  These schools are underfunded, making it difficult for teachers to offer the latest technology and resources that are available to the higher income school districts.  These low income school students may also live in communities where the literacy abilities of the adults is less than par, where they grow up hearing and learning improper language skills at home and in the classroom.  Taking these factors into consideration it is clear why the academic achievements can suffer in these communities. Two students with the same intellectual ability, attending different schools in different districts, can score drastically different on standardized tests. Low test scores do not necessarily mean low intelligence.  The best way to fight poverty is with education, and the higher the education, the more benefits will be reaped.  Giving these minorities the same higher education opportunities as non-minorities will benefit these students and the community as a whole.
 
III. Regents of the University of California v. Bakke
Unlike Regents of the University of California v. Bakke, when the University of California reserved 16 of the 100 openings of the freshman class for minorities, the University of Texas at Austin has no set number of spots reserved for minority applicants, the University of Texas is simply trying to expand its minority population.  In order for the University to be more diverse and culturally beneficial to all students, they must admit more minority students than they had been with previous admission policy. Having a larger minority presence benefits all the students because it offers more, different perspectives on subjects in and out of the classroom.  Due to automatic acceptation of the top ten percent of high school classes, the minority population can be significantly less when compared to other, non-minority ethnicities on campus in Austin.  In order to make up for this difference, the University of Texas tries to accept minority students below the top ten percent to keep their campus diverse and classrooms full of different perspectives.
 
IV. Grutter v. Bollinger
The Grutter v. Bollinger ruling stated that using race as a factor to promote a racially diverse student body.  This is exactly what the University of Texas at Austin was trying to do.  The University’s previous admissions policy was resulting in a “critical mass” of minorities not being achieved.  The new admission policy, which factors in race, allows the University to better achieve a “critical mass.”  The Supreme Court has ruled that “racial diversity can be a compelling government interest in university admissions.”  Year after year, the remaining twenty to twenty five percent of the freshman class, those not from the top ten percent of their high school class, mostly consists of non-minority students who have good standardized test scores.
 
V. Parents Involved v. Seattle
It was ruled unconstitutional to place students in high schools based on their race in order to have minorities more balanced throughout the schools in Parents Involved in Community Schools v. Seattle School Dist. No. 1. This is not what the University of Texas at Austin is trying to do.  The Seattle school district was placing student based solely on race, while the University of Texas is using race as one of many factors in the application process.  Although the Supreme Court ruled that the actions of Seattle School Dist. No. 1 was unconstitutional, they still upheld that race could be used as a factor for admission as long as race was not the only factor used.  Chief Justice John Roberts wrote “the present cases are not governed by Grutter.”  Not only is the situation in Parents Involved in Community Schools v. Seattle different than Grutter v. Bollinger and Fisher v. University of Texas, if Parents Involved in Community Schools v. Seattle is not governed by Grutter v. Bollinger because it is a high school and Grutter v. Bollinger dealt with the University of Michigan, then the ruling on Parents Involved in Community Schools v. Seattle cannot really be applied to the Fisher case, which also deals with a college.
 
 
VI. Fisher v. University of Texas
Because no two cases really are exactly the same, the most applicable case is this case itself.  This case has been heard first by the U.S. District Court for the Western District of Texas, who ruled in favor of the University of Texas at Austin.  This case then went before the Fifth Circuit Court of Appeals, who also ruled against Miss Fisher.  The then case went before the Supreme Court and was sent back to the Fifth Circuit Court of Appeals, who once again ruled, like in Grutter v. Bollinger, and in Regents of the University of California v. Bakke,  in favor of the University of Texas at Austin.  This case has been ruled on three times by some of the highest courts in the nation, and three times it has been decided that race based affirmative action is constitutional.
 
VII. Ricci v. DeStafano
In the Ricci v. DeStafano case, the Supreme Court ruled that the New Haven Fire Department’s decision to disregard test scores in order to keep the work place more racially diverse was unconstitutional.  Like in the Parents Involved v. Seattle, the New Haven Fire Department was using race as the only factor.  Although the Fisher and Ricci situations are somewhat similar, there is a big difference between the work place and college settings.  When choosing employees for a job, the most qualified applicants should get the position to ensure the jobs are being performed in the safest, most efficient, and effective way possible.  In college settings however, the job is to learn.  Students with different backgrounds have different strengths and weaknesses and when put together in a learning environment, it allows them to benefit from each other.  By including those who are from minorities, it allows them to become more highly educated and gain the same experiences as those who come from a position of privilege, leveling the playing field in the work place.  By allowing minorities with lower scores into universities and colleges, it provides a more diverse learning environment.  The University of Texas is also trying to provide equal opportunities to students from both privileged and under-privileged backgrounds.
 
 
Conclusion
 
Affirmative action on the basis of race has been a part of this country’s history for one and a half centuries because it has been needed in order for all citizens to have equal opportunities. Until the day comes when affirmative action is no longer necessary, it is the job of those who can balance the scales to do so.  Abigail Fisher was not denied access because of her race; she and many other students who also were not a part of the top ten percent of their high school classes were not admitted for many different reasons.  In Regents of the University of California v. Bakke, it was ruled unconstitutional to reserve spots for minorities, but ruled that using race as one of the factors in selecting applicants is acceptable.  In the very similar Grutter v. Bollinger case, it was ruled that it was constitutional to use race as a factor in accepting applicant to have a more diverse student population.  And once again in Parents Involved v. Seattle, it was ruled that race can be used as a factor in higher education admission.  Three times the Supreme Court has ruled that race is an acceptable factor in admissions to school, as long as it is not the only factor and that there is “individualized consideration of students.”  Twice the Fifth Circuit Court of Appeals ruled that the University of Texas’ admission policy is constitutional.  By admitting lower scoring minorities they provide a more diverse campus giving everyone more perspectives on classroom subjects and on campus life.  Having a diverse campus also discourages against racism by truly giving everyone the same and opportunities in college, which then leads to better opportunities in life.  Before any of the court cases involving The University of Texas, and before the admission policy was adopted by this government funded, state university, it was first approved by the University of Texas at Austin.  The Supreme Court must rule in favor of the University of Texas at Austin and race based affirmative action in the higher education setting.

Petitioner-Moss, Lewis, Elkins, WV

Student Name: Derek Lewis and Aron Moss
Elkins HS, Elkins, WV
https://www.youtube.com/watch?v=Ef0RQqfQGrA
Petitioner
Table of Cited Authorities:
Fourteenth Amendment
Adarand Constructors Inc. v. Pena, 1995
Regents of the University of California v. Bakke, 1978
Parents Involved in Community Schools v. Seattle School Dist, June 28, 2007
Ricci v. DeStefano, 2009
Mitchell v. Horn, March 6, 1917
City of Richmond v. J.A. Croson Co, 1989
Schuette v. BAMN, April 22, 2014
Statement of Argument:
The petitioner believes that race conscious affirmative action is not consistent with the Fourteenth Amendment. The Fourteenth Amendment clearly states that every person should be seen as equal, while also stating that all have “equal protection of the laws.” However, giving minority applicants an edge is clearly not treating everybody equally and is giving the minority applicant an upper hand in admissions. The Fourteenth Amendment was ratified in a time when slavery was a recent problem, and it could be argued that this amendment was essentially there for the slaves to ensure that they were no longer being treated the way that they were in the past. Using race as a factor for admission in modern times seems unnecessary. The amendment, however, is still extremely necessary to ensure equality. With state universities in Texas already accepting the top ten percent in the class at every high school, it already allows the university to achieve a diverse student body. Putting even more emphasis on essentially favoring minorities is not fair or equal in any way. Affirmative action in modern times does more harm than good; all it does is give the minorities an upper hand in some situations that seeing everybody as equal is key.
Argument:
Fourteenth Amendment and Affirmative Action
The Court should see that race conscious affirmative action in university admission programs is simply unfair and unequal. As mentioned before, the Fourteenth Amendment was ratified so everybody is treated equally by society and has equal protection of the laws. Giving the minority applicants an edge in admissions clearly violates the Fourteenth Amendment. The Fourteenth Amendment does seem to support the case of race-based affirmative action in some ways depending upon how it is viewed. By saying that everybody will be treated equally, race conscious affirmative action will be needed in some cases to reach that “colorblind society” equality level. However, one needs to see that this amendment was ratified in a time of when the United States had just recently went their separate ways with slavery. In the late 1800s, race conscious affirmative action was certainly needed due to all of the hate and negative views on minorities. Affirmative action, 150 years later, is not needed. Minorities are no longer treated the way they were and should be seen as an equal part of society, instead of still essentially favoring them. Yes, race-conscious admission programs may be affirmative action, but affirmative action should not still be in place years and years after slavery and other horrific racist programs were in place.
Adarand Constructors, Inc. v. Peña
In Adarand Constructors, Inc. v. Peña, a contracting company, named Gonzales Construction was picked over another contracting company, Adarand Construction, to help with a Department of Transportation project. Being owned and ran by socially and economically disadvantaged individuals, the US Small Business Administration would certify certain businesses as disadvantaged. In this case, Gonzales Construction had been certified by the Small Business Administration due to those factors, which meant that it essentially had an upper hand in the choice of picking between the contracting companies applying for the jobs, because the company would receive more incentives by doing so. In a five to four decision, the supreme court decided in favor of Adarand Construction and said that “all racial classifications, whether imposed by federal, state, or local authorities, must pass strict scrutiny review.” In Fisher v. Texas University, it is essentially the same problem due to the minority receiving an edge over Abby Fisher and others.
Strict Scrutiny
Texas University has not proven that its race conscious admission program meets strict scrutiny. In a simple way, strict scrutiny is “the most stringent standard of judicial review used by United States courts. It is part of the hierarchy of standards that courts use to weigh the government’s interest against a constitutional right or principle”. To meet strict scrutiny, the law or policy must be narrowly tailored to meet the interest, which in this case, is achieving a critical mass of minorities. Since Texas University does not openly say how much they weigh a minority’s race or background, nobody knows how much weight is on an applicant’s race when applying in whether or not they become admitted, which in turn, does not meet strict scrutiny.
Regents of the University of California v. Bakke
In the case of Regents of the University of California v. Bakke, it was ruled that quotas set aside for minority students in admission were not allowed. Since the University of Texas will not share how much preference a minority receives or if there is a quota to receive “a critical mass”, one must wonder how the University is allowed to do so and if there is actually a quota set aside for these students. History does support affirmative action programs, due to the United States’ ugly history in regards to minorities, but it is a stretch to say that minorities in today’s world are affected by something that happened to their ancestors 150 years ago.
Parents Involved in Community Schools v. Seattle School District
To reference another case, in Parents Involved in Community Schools v. Seattle School District, it was wondered if denying a student of admission to a high school of his or her choice solely based on race violated the Equal Protection clause. It was deemed that it was indeed in violation of the equal protection clause. To touch back on a previous point, the whole reason the University of Texas puts emphasis on minorities in admission is to achieve “a critical mass.” However, since the University of Texas automatically accepts the top ten percent of all high schools in Texas, this clearly allows for them to achieve that critical mass, because they will be admitting all sorts of different students and minorities. With Texas being a very large state, there are plenty of cities with high schools that have these minorities. The ten percent rule allows the university to pull these minorities from all around the state. Also, since it is unknown what number a “critical mass” represents, it could be argued that it is essentially just a quota for minority students.
Freedmen’s Bureau
The Freedmen’s Bureau was established in 1865 by Congress during Abraham Lincoln’s Presidency. It was made to help poor African American and Caucasian families after the Civil War in the south. The Freedmen’s Bureau supplied these families with food, and housing, gave them medical care, provided legal aid, and created schools for them. It only was intended to last one year after the Civil War ended but after the first year it was extended for another two years. Congress shut down the Freedmen’s Bureau in 1872.
The Freedmen’s Bureau supplied help not only to African Americans but also to Caucasian families too. Not just minorities were supported in this Bureau. This is a fair bureau because it recognized that not only African Americans needed help but Caucasians also needed help in finical things.
Affirmative Action
Affirmative action is faulty, because it only supports minorities. For example, the Freedman’s Bureau supported everyone that might need help in anyway, not just minorities. An example of affirmative action that went along with only helping one ethnicity is the Ricci v. DeStefano case. This case dealt with the discarding of test scores of White and Latino people so a minority could receive a promotion even though these people scored lower on the test. The people in charge of the promotions claimed that they did not promote the White or Latino person because it would cause an unproportioned amount of majorities to hold the job. This case deals heavily towards what Abigail Fisher went through at the University of Texas. One key thing that Ms. Fisher suffered from in the same way was that she was also not accepted because she was in the majority of people. Now the respondent asserts that the University of Texas did not throw away test scores like in the Ricci v. DeStefano case. The respondent would be correct in that fact, but just as how the White and Latino people were kept from having a promotion, which they were more adequate for; Fisher could have been more qualified for the life of college than the opposing person that received the acceptance into the college.
A few people during the era of Reconstruction did not know how long the Freedmen’s Bureau should last or what exactly it covered. President Lincoln wanted the bureau to only last one year and cover medical care, education, and food. He did a good job, for three years, at doing this until he was assassinated, but after he was killed, President Johnson kept going on with the plan of helping the people of the South.
 
Lingering Effects of Slavery
 
Slavery in modern day society is nonexistent. Even though it is nonexistent the state is trying to fix the mistakes of the past, which they can try to fix but will not succeed in the long term. Some of the ways the states try to fix the past are when they give out reparations to minorities or when they give special treatment to minorities. One example in how the state gives preferential treatment to minorities is the City of Richmond v. J.A. Croson Co case. This case was about how construction companies in Virginia were required to have at least thirty percent of their workers to come from a minority background. If the company followed this guideline, they got a tax reduction. The court found that this requirement was unconstitutional because there was a set quota for the amount of people that had to be a minority. Another example of the state trying to fix the past is when they give out scholarships to certain ethnicities instead of giving the scholarship to all people that could benefit from the scholarship. If the states continue giving money, such as scholarships, to people based on ethnicity then viewpoints will always look back to the past.
 
Colorblindness in Society
In society, everybody should be treated equally because that is the basis of the United States of America this is stated in the Declaration of Independence. Society should be completely colorblind because if it were there would never be cases of racism. A sad example in how society is not colorblind is affirmative action. One case that dealt with affirmative action was the Schuette v. Coalition to Defend Affirmative Action case. This case is the definition in why society needs to be colorblind. This case resolved the question that using sex and ethnicity to choice who goes into college violates the fourteenth amendment. The Court found that this case does not violate the amendment. Justice Scalia said this against the majority, “The Fifth and Fourteenth Amendments . . . protect persons, not groups.” Justice Scalia was saying that we should not look at ethnicity but the actual person. The petitioner agrees because with this logic, society will never be colorblind; which it desperately needs.
Conclusion:
Overall, I believe that if affirmative action continues in society, and the world will struggle to be colorblind at all times. Without the world being equal, we could lose important things that could cause problems in society forever. The things we could lose include students not getting an education such as how Abigail Fisher could have been if she would not have gone to college at a different place. There could be more students like Fisher that do not get accepted into a college based on ethnicity that might not go to college at all after been denied in such a fashion. This could prevent some major accomplishments and advancements in society.
The court should find that Texas University showing preference for minorities during admission is violating the Fourteenth Amendment’s Equal Protection clause. Yes, strict scrutiny is imminent in similar cases to this one, but, in this particular case, the University of Texas does not release any information about their admission filters, so there is no way to know if they are setting quotas or anything to achieve the “critical mass” that they are striving for. At one point, affirmative action was definitely needed. However, over a hundred years after slavery was abolished, affirmative action is no longer as relevant as people make it out to be. Minorities today are not affected nearly as much by these moments in history as they used to be. With that being said, they should not receive this special treatment and should be treated the same way everybody else in society is. The best way to get rid of these racist views is to simply silence society about these moments in history and trying to help these minorities, as it just lets people be reminded that these things do still exist.

Respondent-Burgess, Hummer-Elkins, WV

Student Name: Elizabeth Burgess, Ben Hummer

https://youtu.be/syppUdXiOEI

Table of Cited Authorities:

Ricci v. DeStefano (2009)

Fisher v. Univ. of Tex. at Austin, 631 F.3d 213 (5th Cir. 2011)

Fourteenth Amendment

Freedmens Bureau (1865)

Fullilove v. Klutznick (1980)

Grutter v. Bollinger (2003)

Parents Involved in Community Schools v. Seattle (2007)

Regents of the University of California v. Bakke (1978)

United States v. Paradise (1987)

Statement of Argument:

May it please the Court that race conscious affirmative action is consistent with the Fourteenth Amendment to the United States Constitution. University of Texas at Austin automatically grants all students within the top ten percent admission to the university, a criteria that the petitioner, Abigail Fisher did not achieve. University of Texas at Austin offers an alternative method of possible admission to those like the petitioner, taking into account many factors such as grade point average, standardized test scores, extracurricular activities, community involvement, and race. The admissions office deemed that Fisher was not an ideal candidate for acceptance, and offered the spot to another applicant. Grutter v. Bollinger and Regents of the University of California v. Bakke support the argument that race may be used as a factor in university admissions decisions.

Argument:

I.Previous Cases Support Race Conscious Admissions Processes

Regents of the University of California v. Bakke supports race-conscious admissions through its declaration that race quotas are unconstitutional, but race may be considered in the admissions process. While Allan Bakke gained admission to UC, Affirmative Action was not only upheld, but was endorsed by five Supreme Court Justices.

In Parents Involved in Community Schools v. Seattle, Justice John Roberts supported the idea that as long as race is not the only or main factor in an admissions decision, it can be considered. The type of diversity needed for a holistic college experience is different than what may be needed for a middle or high school education, and the Supreme Court explained that when comparing Parents Involved in Community Schools and Bakke. Previously, the Supreme Court had considered racial diversity a compelling interest, but mostly on university campuses rather than high school premises, which was the issue in this particular case.

Grutter v. Bollinger allowed University of Michigan to weigh heavily an applicants race in the admissions decision. Justice Sandra Day OConnor stated that programs that assist minorities would be necessary for at least twenty-five years, and this case falls within that scope of time. Contrary to the petitioners argument, Ricci v. DeStefano is not relevant to this case, as the respondent is not a university attempting to achieve campus diversity, but a group of firefighters throwing away test scores. While race was involved, it would be a stretch, at most, to compare the two cases. The petitioner is arguing a very different claim than what is presented in Ricci.

II. Race Conscious Admissions Processes Meet Strict Scrutiny

The University of Texas at Austins use of race in the admissions process does meet strict scrutiny. The Fifth Circuit Court of Appeals reviewed this case multiple times before it was sent to the Supreme Court, finding the admissions process lawful. Strict scrutiny is used to solve a specific, important issue without causing unnecessary negative effects. The compelling interest in this case is a public university offering a racially diverse campus, and the narrowly tailored policy is that race is one of many factors, not the only factor. A racially diverse campus cultivates a variety of knowledge and experience, feeding students, and in turn, society. The governments interest in the health and expansion of young minds must be top priority. As long as race is not the main or deciding factor, the admissions process meets strict scrutiny.

III. The Fourteenth Amendment Supports Race Conscious Admissions Processes

The language of the Fourteenth Amendment and the context in which it was written both support affirmative action tremendously. The Fourteenth Amendment was written in response to the mistreatment of African American citizens of the United States (minorities).  While the Emancipation Proclamation technically freed slaves on paper, it was met with opposition and resentment by many American citizens. To rectify the wrongdoings of those in disagreement with the Emancipation Proclamation, the Fourteenth Amendment was made. Similarly, affirmative action attempts to make up for the resentment left behind from slavery. Although many laws are passed, enforcement in social issues is sometimes difficult to ensure and that is the case in this situation.  The Fourteenth Amendment states that, No Stateshall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law;nordeny to any person within its jurisdiction the equal protection of the laws. and affirmative action simply rectifies an amendment that has not been properly followed. Affirmative action is needed to account for the historical disregard of previous laws. Examples of this disregard may include Southernersrebellion against the Emancipation Proclamation and the lack of respect for the Fourteenth Amendment.

IV. Reconstruction-era Legislation Supports Affirmative Action

Reconstruction-era legislation supports affirmative action programs in an attempt to make restitution for the gruesome acts committed during the time of slavery. The Freedmens Bureau, created through Act of June 21, 1866, ch. 130, § 2, 1866 Stat. 69 ensured that freedmen would be given opportunities to obtain a higher education and transition into society as equals. This legislature was necessary to counteract the resentment and opposition many Southerners exhibited against the advancement of minorities. Congressional Globe, 39th Congress, 1st Session 240 prompted Representative Henry Wilson to voice concerns that minorities required assistance in fighting against legislation that Southerners may try to pass in attempt to lessen minority rights. Education is woven into this subject by the Freedmens Bureau, and its obvious goal to make restitution to minorities by providing them with an increased chance of getting higher education. The reasoning behind this is that a higher education will provide many more opportunities throughout a persons life. While there is a university that is a product of the Freedmens Bureau, African Americans and other minorities should not be limited to a specific university. They should have equal protection under the law, but because that is not reality, affirmative action must be enacted. [1]

V. The Freedmens Bureau Supports the Theory of Affirmative Action

The precedent for Affirmative Action can be traced back to a Civil War era institution known as the Freedmans Bureau. It was designed by the United States government to both help integrate newly freed slaves into American Society and to deal with the surge of refugees created by the destruction the Civil War caused upon the South. Throughout its three year existence, the bureau helped former slaves gain a foothold in the post-war economy. One of the original plans was to redistribute former confederate land to landless freedmen so that they could farm it and in turn build wealth, but it was repealed by Congress after the bill was passed. That left the only real way to improve the situation that former slaves found themselves in was to provide education opportunities for them to take advantage of. This is regarded as one of the biggest successes of the Freedmans Bureau.

VI. Affirmative Action is a Necessary Response to Historical Acts

Today, Americans still live in a society where certain minority groups, particularly African-Americans, lack the same access to quality education that White America is provided. It has become a goal of the United States government to help these disadvantaged groups achieve parity with their white peers, as no other group or institution has the power or will to adequately tackle this challenge facing our nation.  This has been reinforced by Supreme Court cases, such as Grutter v. Ballinger, where the Supreme Court ruled that Affirmative Action is constitutional when the school in question is trying to achieve a substantiallevel of minorities to create a diverse campus.

VII. History Still Affects Society

The social and economic damage caused by slavery is still visible in modern society. When slaves were freed, they had to start out with virtually nothing to their name. Not enough of them were able to get an education via the Freedmans Bureau during its limited tunure. Former slaves and their descendants lacked a fair opportunity to buy land or make any real form of investment in their future, leading many ex slaves to return to plantations to work for slim wages, a practice known as sharecropping. On top of this, Reconstruction was never able to solve the pre-existing discrimination against the black population, leading to segregation and Jim Crow laws that forced African Americans to settle for schools that were severely underfunded compared to white schools. This only deepened the economic divide between white and black and created a culture that accepted and promoted active discrimination against the black population. The government must be the one to solve this problem. Individuals and Non-Profits lack the power, weight, and ability to effectively tackle the challenge of inequality. One of the crucial stepping stones to this is to help disadvantaged groups gain access to higher education. This is the basic premise of Affirmative Action, and has been backed by many court cases dealing with the issue. In Fullilove v. Klutznick, the Supreme Court ruled that, should an institute desire, set up modest quotas for minorities. Also, in United States v. Paradise, it was ruled that government organizations, specifically schools, could choose to promote minorities in order to create a more equal work environment. Cases like these have proven the constitutionality of Affirmative Action.

Conclusion:

The Court should find that the University of Texas at Austin had the constitutional right to deny Abigail Fisher admission to its campus. The University of Texas at Austins admissions policies meet the tests of strict scrutiny, and are supported by Grutter, Bakke, and  Fisher v. Univ. of Tex. at Austin, 631 F.3d 213 (5th Cir. 2011). The admissions decision may consider race as a factor in acceptance as long as it is one among many, and it was in this case. Affirmative action is an acceptable means of restitution for historical wrongdoings, especially when it is made right through education and educational opportunities. University of Texas at Austins decision is supported by several pieces of legislation, dating back to Reconstruction-era. The mere existence of the Freedmens Bureauand content in which the Fourteenth Amendment was written exemplifies the need for affirmative action, especially when a critical mass or racial diversity on a university campus is being pursued. [2]

In an ideal world, all Americans of all backgrounds would live together in perfect harmony and equality. Unfortunately, Americans do not live in that world. Even today, minority groups across the United States are significantly poorer than the rest of America. Because many minority groups, including rural white Americans who would be the first in their family to gain a higher education, live in lower income neighborhoods, they often go to schools that are drastically underfunded and understaffed, creating a divide in education between them and wealthier Americans. This limits employment opportunities, which in turn closes the routes out of poverty. Those who would advocate for a colorblind society do not always see the impact of such a mindset. If everyone is viewed the same, we as a nation would not see the adversity that many minorities overcome just to reach a form of parity with the typical white American. In the Supreme Court case Ricciv. Destefano, it was reinforced that race should not be a barrier to an individuals opportunity in our nation. The U.S. has made much progress over the past decades, from the ending of segregation and Jim Crow laws to the embracement of immigrants and minorities into our everyday culture. However, America has yet to achieve the end of race and religion as a deciding factor of somebodys standing in society. Sometime in the future, we will have a colorblind society but in order for that to happen, all colors of people must be the same. The respondent asks the Court to uphold affirmative action as a program and as an idea so that disadvantaged Americans can continue to pull themselves out of poverty and help create a truly equal and distinctly American society.


[1]

[2]


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X-NONE
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Student Name: Elizabeth Burgess, Ben Hummer

https://youtu.be/syppUdXiOEI

Table of Cited Authorities:

Ricci v. DeStefano (2009)

Fisher v. Univ. of Tex. at Austin, 631 F.3d 213 (5th Cir. 2011)

Fourteenth Amendment

Freedmens Bureau (1865)

Fullilove v. Klutznick (1980)

Grutter v. Bollinger (2003)

Parents Involved in Community Schools v. Seattle (2007)

Regents of the University of California v. Bakke (1978)

United States v. Paradise (1987)

Statement of Argument:

May it please the Court that race conscious affirmative action is consistent with the Fourteenth Amendment to the United States Constitution. University of Texas at Austin automatically grants all students within the top ten percent admission to the university, a criteria that the petitioner, Abigail Fisher did not achieve. University of Texas at Austin offers an alternative method of possible admission to those like the petitioner, taking into account many factors such as grade point average, standardized test scores, extracurricular activities, community involvement, and race. The admissions office deemed that Fisher was not an ideal candidate for acceptance, and offered the spot to another applicant. Grutter v. Bollinger and Regents of the University of California v. Bakke support the argument that race may be used as a factor in university admissions decisions.

Argument:

I.Previous Cases Support Race Conscious Admissions Processes

Regents of the University of California v. Bakke supports race-conscious admissions through its declaration that race quotas are unconstitutional, but race may be considered in the admissions process. While Allan Bakke gained admission to UC, Affirmative Action was not only upheld, but was endorsed by five Supreme Court Justices.

In Parents Involved in Community Schools v. Seattle, Justice John Roberts supported the idea that as long as race is not the only or main factor in an admissions decision, it can be considered. The type of diversity needed for a holistic college experience is different than what may be needed for a middle or high school education, and the Supreme Court explained that when comparing Parents Involved in Community Schools and Bakke. Previously, the Supreme Court had considered racial diversity a compelling interest, but mostly on university campuses rather than high school premises, which was the issue in this particular case.

Grutter v. Bollinger allowed University of Michigan to weigh heavily an applicants race in the admissions decision. Justice Sandra Day OConnor stated that programs that assist minorities would be necessary for at least twenty-five years, and this case falls within that scope of time. Contrary to the petitioners argument, Ricci v. DeStefano is not relevant to this case, as the respondent is not a university attempting to achieve campus diversity, but a group of firefighters throwing away test scores. While race was involved, it would be a stretch, at most, to compare the two cases. The petitioner is arguing a very different claim than what is presented in Ricci.

II. Race Conscious Admissions Processes Meet Strict Scrutiny

The University of Texas at Austins use of race in the admissions process does meet strict scrutiny. The Fifth Circuit Court of Appeals reviewed this case multiple times before it was sent to the Supreme Court, finding the admissions process lawful. Strict scrutiny is used to solve a specific, important issue without causing unnecessary negative effects. The compelling interest in this case is a public university offering a racially diverse campus, and the narrowly tailored policy is that race is one of many factors, not the only factor. A racially diverse campus cultivates a variety of knowledge and experience, feeding students, and in turn, society. The governments interest in the health and expansion of young minds must be top priority. As long as race is not the main or deciding factor, the admissions process meets strict scrutiny.

III. The Fourteenth Amendment Supports Race Conscious Admissions Processes

The language of the Fourteenth Amendment and the context in which it was written both support affirmative action tremendously. The Fourteenth Amendment was written in response to the mistreatment of African American citizens of the United States (minorities).  While the Emancipation Proclamation technically freed slaves on paper, it was met with opposition and resentment by many American citizens. To rectify the wrongdoings of those in disagreement with the Emancipation Proclamation, the Fourteenth Amendment was made. Similarly, affirmative action attempts to make up for the resentment left behind from slavery. Although many laws are passed, enforcement in social issues is sometimes difficult to ensure and that is the case in this situation.  The Fourteenth Amendment states that, No Stateshall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law;nordeny to any person within its jurisdiction the equal protection of the laws. and affirmative action simply rectifies an amendment that has not been properly followed. Affirmative action is needed to account for the historical disregard of previous laws. Examples of this disregard may include Southernersrebellion against the Emancipation Proclamation and the lack of respect for the Fourteenth Amendment.

IV. Reconstruction-era Legislation Supports Affirmative Action

Reconstruction-era legislation supports affirmative action programs in an attempt to make restitution for the gruesome acts committed during the time of slavery. The Freedmens Bureau, created through Act of June 21, 1866, ch. 130, § 2, 1866 Stat. 69 ensured that freedmen would be given opportunities to obtain a higher education and transition into society as equals. This legislature was necessary to counteract the resentment and opposition many Southerners exhibited against the advancement of minorities. Congressional Globe, 39th Congress, 1st Session 240 prompted Representative Henry Wilson to voice concerns that minorities required assistance in fighting against legislation that Southerners may try to pass in attempt to lessen minority rights. Education is woven into this subject by the Freedmens Bureau, and its obvious goal to make restitution to minorities by providing them with an increased chance of getting higher education. The reasoning behind this is that a higher education will provide many more opportunities throughout a persons life. While there is a university that is a product of the Freedmens Bureau, African Americans and other minorities should not be limited to a specific university. They should have equal protection under the law, but because that is not reality, affirmative action must be enacted. [1]

V. The Freedmens Bureau Supports the Theory of Affirmative Action

The precedent for Affirmative Action can be traced back to a Civil War era institution known as the Freedmans Bureau. It was designed by the United States government to both help integrate newly freed slaves into American Society and to deal with the surge of refugees created by the destruction the Civil War caused upon the South. Throughout its three year existence, the bureau helped former slaves gain a foothold in the post-war economy. One of the original plans was to redistribute former confederate land to landless freedmen so that they could farm it and in turn build wealth, but it was repealed by Congress after the bill was passed. That left the only real way to improve the situation that former slaves found themselves in was to provide education opportunities for them to take advantage of. This is regarded as one of the biggest successes of the Freedmans Bureau.

VI. Affirmative Action is a Necessary Response to Historical Acts

Today, Americans still live in a society where certain minority groups, particularly African-Americans, lack the same access to quality education that White America is provided. It has become a goal of the United States government to help these disadvantaged groups achieve parity with their white peers, as no other group or institution has the power or will to adequately tackle this challenge facing our nation.  This has been reinforced by Supreme Court cases, such as Grutter v. Ballinger, where the Supreme Court ruled that Affirmative Action is constitutional when the school in question is trying to achieve a substantiallevel of minorities to create a diverse campus.

VII. History Still Affects Society

The social and economic damage caused by slavery is still visible in modern society. When slaves were freed, they had to start out with virtually nothing to their name. Not enough of them were able to get an education via the Freedmans Bureau during its limited tunure. Former slaves and their descendants lacked a fair opportunity to buy land or make any real form of investment in their future, leading many ex slaves to return to plantations to work for slim wages, a practice known as sharecropping. On top of this, Reconstruction was never able to solve the pre-existing discrimination against the black population, leading to segregation and Jim Crow laws that forced African Americans to settle for schools that were severely underfunded compared to white schools. This only deepened the economic divide between white and black and created a culture that accepted and promoted active discrimination against the black population. The government must be the one to solve this problem. Individuals and Non-Profits lack the power, weight, and ability to effectively tackle the challenge of inequality. One of the crucial stepping stones to this is to help disadvantaged groups gain access to higher education. This is the basic premise of Affirmative Action, and has been backed by many court cases dealing with the issue. In Fullilove v. Klutznick, the Supreme Court ruled that, should an institute desire, set up modest quotas for minorities. Also, in United States v. Paradise, it was ruled that government organizations, specifically schools, could choose to promote minorities in order to create a more equal work environment. Cases like these have proven the constitutionality of Affirmative Action.

Conclusion:

The Court should find that the University of Texas at Austin had the constitutional right to deny Abigail Fisher admission to its campus. The University of Texas at Austins admissions policies meet the tests of strict scrutiny, and are supported by Grutter, Bakke, and  Fisher v. Univ. of Tex. at Austin, 631 F.3d 213 (5th Cir. 2011). The admissions decision may consider race as a factor in acceptance as long as it is one among many, and it was in this case. Affirmative action is an acceptable means of restitution for historical wrongdoings, especially when it is made right through education and educational opportunities. University of Texas at Austins decision is supported by several pieces of legislation, dating back to Reconstruction-era. The mere existence of the Freedmens Bureauand content in which the Fourteenth Amendment was written exemplifies the need for affirmative action, especially when a critical mass or racial diversity on a university campus is being pursued. [2]

In an ideal world, all Americans of all backgrounds would live together in perfect harmony and equality. Unfortunately, Americans do not live in that world. Even today, minority groups across the United States are significantly poorer than the rest of America. Because many minority groups, including rural white Americans who would be the first in their family to gain a higher education, live in lower income neighborhoods, they often go to schools that are drastically underfunded and understaffed, creating a divide in education between them and wealthier Americans. This limits employment opportunities, which in turn closes the routes out of poverty. Those who would advocate for a colorblind society do not always see the impact of such a mindset. If everyone is viewed the same, we as a nation would not see the adversity that many minorities overcome just to reach a form of parity with the typical white American. In the Supreme Court case Ricciv. Destefano, it was reinforced that race should not be a barrier to an individuals opportunity in our nation. The U.S. has made much progress over the past decades, from the ending of segregation and Jim Crow laws to the embracement of immigrants and minorities into our everyday culture. However, America has yet to achieve the end of race and religion as a deciding factor of somebodys standing in society. Sometime in the future, we will have a colorblind society but in order for that to happen, all colors of people must be the same. The respondent asks the Court to uphold affirmative action as a program and as an idea so that disadvantaged Americans can continue to pull themselves out of poverty and help create a truly equal and distinctly American society.


[1]

[2]



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Bryssa and Cesilia Affirmative

Affirmative Speech