I am a member of the Society for Human Resources Management. The manager of workplace law content for the Society for Human Resources Management is a gentleman named Allen Smith, J.D. He wrote an excellent article a few days ago discussing Fisher II, the affirmative action case in academia just decided by the United States Supreme Court, and I thought I would use that article as a jumping off point for discussing affirmative action in higher education and how the ruling affects affirmative action program for people with disabilities. As is usual, the blog is divided into categories: the case itself; the impact of the case on affirmative-action programs for persons with disabilities; and conclusions. Of course, the reader is free to focus on any or all of the categories.
The Case Itself:
In the article, Allen makes the following points.
- Race may not be considered unless the admission process can withstand strict scrutiny.
This is absolutely true. However, it is a little more complicated than that. If something is subject to strict scrutiny, then a compelling interest must be shown. In this situation, the Supreme Court following prior decisions, held that the diversity of the student body in a college or university setting is a compelling interest.
- Courts will give some, but not complete, deference to the decision to pursue educational benefits flowing from student body diversity.
Also, true. However, the method adopted by the University must be based on hard data. If affirmative action is used, the University has the burden of showing that they tried just about everything else before adopting affirmative action programs.
- In the article, Allen talks to an attorney. Doug Kaufman of Balch and Bingham of Birmingham, Alabama, who recommends with respect to employers undertaking diversity efforts that they do the following:
- Conduct a self-analysis to determine if minorities are underrepresented;
- Articulate what is trying to be remediated; and
- Choose reasonable methods to remediate the problems.
- I could not agree more with the approach in paragraph I3.
I will say that choosing reasonable methods in light of the case law means adopting the least intrusive way to accomplish the goal. That is, affirmative action should be a last resort and only after plenty of hard data exists to support its use. When used, the criteria should be neutral and also utilize an individual holistic analysis. Also, in my opinion, as someone who spent 12 years full time in academia, it is not just racial and ethnic diversity that makes for a compelling university, but also diversity of viewpoints, and colleges should consider that as well if they want to have a truly diverse driving community. After all, it is possible, it happens more frequently than you might expect, to have on campus racial and ethnic diversity but have an absence of viewpoint diversity.
Fisher II’s Effect on Affirmative-Action Programs for Persons with Disabilities
So, how does this decision affect affirmative action for persons with disabilities, such as the requirements of affirmative action for persons with disability set out by the office of Federal Contract and Compliance Programs, which we discussed in this blog entry.
- Race may not be considered in the absence of withstanding strict scrutiny. Withstanding strict scrutiny means showing a compelling interest.
- Affirmative-action regulation for federal contractors with respect to persons with disabilities is not an area of the law that is well settled.
- When it comes to persons with disabilities, there are several problems with respect to affirmative-action programs:
- If affirmative action programs regardless whether it be race or something else, require a compelling interest. The question becomes does an employer have a compelling interest in a diverse employee base? This statement raises the issue of whether affirmative-action programs are being subject to strict scrutiny because race is involved or is it because of the affirmative-action program itself? Both? If race is not involved in the affirmative-action program, such as a program focused on persons with disabilities or women, does that mean that the employer gets more leeway? ( an interesting idea, but I do not think it will hold up per §II3(3) below)
- Persons with disabilities are not a race.
- Persons with disabilities with respect to employment fall in the lowest tier of equal protection jurisprudence, rational basis, per Board of Trustees of the University of Alabama v. Garrett. Accordingly, the question becomes whether the system is proportionate to the harm being meant to be redressed. Depending upon the intensity of the affirmative action regulatory scheme, that proportionality may be very difficult to show. A lowest tier classification means that the intensity of the affirmative-action system or regulatory scheme would not have to be very high to fail to meet the proportionality test, i.e. be disproportionate to the harm meant to be redressed and therefore, be in violation of the enforcement clause of the equal protection clause of the 14th
- Due to ¶II3(3), affirmative-action for persons with disabilities in employment is going to be a tough sell depending upon the logistics of the affirmative-action program or system. In light of Fisher II, it might be an easier sell, but certainly not an easy one, in the University or College setting.
- Affirmative-action programs need to be driven by hard data and refined as the data comes in.
- An individual approach is always better than saying that a person because of the characteristic automatically gets a plus putting him or her over the top so to speak.
- With respect to affirmative-action programs, the decision could have been much worse for those wanting to continue using such programs.
- In the decision, Justice Kennedy mentioned once again the concept of “equal dignity,” (that concept came up in Obergefell v. Hodges, the gay marriage decision), and how this concept makes its way into constitutional law jurisprudence over time, if at all, bears watching.