Unions back universities in race and admissions Supreme Court case

Declaring that, still, “race matters” in schools and society, the AFL-CIO, both teachers unions, AFSCME and the Service Employees, are siding with top universities in a U.S. Supreme Court case on the role of race in college admissions.

In a “friend of the court” brief filed with the justices, the unions argue that the High Court should follow its prior precedent and let race be one factor, but not the controlling factor, in undergraduate admissions.

“Equal educational opportunities, including opportunity to learn with students of races other than one’s own, are a fundamental prerequisite” for overall equality, said the National Education Association, the largest teachers union.

“Ours is not a color-blind society, and race still matters,” the union coalition told the justices. “When it comes to public elementary, secondary, and higher education, racial classifications continue to carry great weight – dividing educational opportunities inequitably and distorting perceptions with stereotypes and prejudice.”

Public schools, including state-sponsored universities have a mission that includes “instilling in all students the values on which our society rests and to provide them with the skills and knowledge necessary to realize their full potential. That mission cannot adequately be fulfilled without racially diverse classrooms. Accordingly, achieving such diversity unquestionably serves a compelling state interest.”

That’s why universities, private and public, should be able “to take race into account in making decisions as to student admissions, assignments, and/or transfers.”

The case, filed by the University of Texas, will come before the justices on Oct. 10, just a week after the court opens its formal 2012-13 session.

Knowing that Justice Anthony Kennedy could be the swing vote in an ideologically polarized court, the unions’ brief specifically quotes him as writing in a 2003 case that diversity on campus “promotes cross-racial understanding (that) helps to break down racial stereotypes,” leads to “more enlightening classroom discussion,” promotes better learning outcomes and better prepares students for an increasingly diverse workforce and society.”

That’s vital not just for education but for the country, the unions – themselves very diverse – reminded the justices. “Nothing less than the nation’s future depends upon leaders trained through wide exposure to the ideas and mores of students as diverse as this nation of many peoples,” they point out. That quote, pointedly, came from the first such affirmative-action-on-campus ruling, the 1978 Bakke case.

The student suing Texas, and other foes of diversity on campus, want court scrutiny of such plans to be so strict that it would be “fatal in fact in every circumstance,” the unions said.

“As the duly authorized representatives of millions of educators and millions more working Americans, we urge this court to continue to recognize that ensuring diversity at the school and classroom level, including racial and ethnic diversity, is a compelling government interest that can justify the appropriately limited use of race as one of many factors in school admissions and assignment decisions.”

While the Texas case reached the justices, other relevant rulings are in lower courts. But another top case for workers may wend its way up from Arizona, again.

There, U.S. District Judge Frederick Martone dismissed the National Labor Relations Board’s (NLRB) case against an Arizona constitutional amendment ordering approval of unions only by secret ballots, and virtually barring any alternatives, including voluntary recognition, also known as card check.

A ban on such alternatives has been a radical right GOP big business goal, as unions increasingly turn to card-check to counteract delays, roadblocks and labor law-breaking that firms use in a “normal” union recognition election campaign.

The NLRB challenged the GOP-passed Arizona amendment as an infringement on federal supremacy in labor relations law and also warned three other GOP-run states their similar amendments are in trouble, too.  The NLRB reported that Martone on Sept. 5 granted Arizona’s motion to dismiss the board’s case. But the agency said the judge left the door open for future action.

“It is possible that state litigation invoking” the amendment “may impermissibly clash with the NLRB’s jurisdiction to resolve disputes over employee recognition, conduct secret ballot elections, and address unfair labor practices,” Martone wrote. But “because the amendment has not yet been applied,” to a contest, Martone “could not assume that it would conflict with the National Labor Relations Act.”

“Our objective was to ensure employees protected by law continue to have the same options for choosing representation they have always had,” said NLRB Chairman Mark Pearce. “Although we continue to believe” Martone should have ruled federal law preempted Arizona, “We are very pleased the court recognized these choices are guaranteed to employees by federal law and cannot be taken away by the states.”

Photo: Postcard image of Duquesne University campus. Wikimedia Commons.


Mark Gruenberg
Mark Gruenberg

Mark Gruenberg is the editor of Press Associates Inc. (PAI), a union news service.