End of an Era?

Fisher v. University of Texas and the Future of Affirmative Action

By Jacob Fass

This month, the Supreme Court met to revisit the issue of affirmative action in Fisher v. University of Texas at Austin, a case that brought to light an interesting cleavage in the debate about merit and race in America. On one side is Abagail Fisher, a white, 22-year-old woman who applied to and was rejected from the flagship campus of the University of Texas. On the other side is the university itself and the educational establishment that has rallied behind it.

The majority of each incoming class at UT is filled through the 10 percent plan, a rudimentary process through which each student in the top decile of Texas high school seniors is automatically granted admission. This is designed to attract the best students from a wide range of high schools and social circumstances. Abagail Fisher narrowly missed the 10 percent cutoff at her high school and applied for one of the remaining spots at UT Austin.

The college admissions staff examined her application in a process deemed holistic, a claim universities make so frequently that it quickly becomes familiar to high school seniors in the throes of the college search. Unlike the students who were admitted under the 10 percent plan, the admission staff considered a variety of factors on Fisher’s application. They looked at her test scores, essays, family background, leadership positions, community service, work experience, awards and SAT scores relative to her school’s average.

And they looked at her race. It was of course this last consideration that launched Fisher’s constitutional challenge and carried it all the way to the Supreme Court. Fisher sued the University on the grounds that its consideration of race violated her right to equal protection under the Fourteenth Amendment. Supreme Court has a record of upholding affirmative action programs. In the 1978 case Regents of the University of California v. Bakke, and most recently in Grutter v. Bollinger, the court has approved the use of race in certain circumstances, on the premise that racial diversity in the educational sphere is in society’s best interest. In the latter case, former Justice Sandra O’Connor stated that “we expect that 25 years from now the use of racial preferences will no longer be necessary to further the interest we approve today.”

That was in 2003, just nine years ago. But when the Court agreed to hear Fisher’s case earlier this year, it shook the legal and political foundations of affirmative action to their core. Based on their comments, the current justices of the Supreme Court seem likely to invalidate the Texas program and ban or severely limit the use of race in admissions. The academy, the business establishment and even the military, all of which use race to compose diverse organizations, have reacted furiously, filing dozens of briefs in support of the University.

When Lyndon Johnson first proposed an aggressive program of affirmative action in 1965, he used a metaphor to describe American society: “You do not take a person who for years has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say ‘you are free to compete with all the others’ and still justly believe that you have been completely fair.” Affirmative action was perceived as a form of reparation in a society plagued with endemic discrimination, a way to level the playing field in the aftermath of the Civil Rights Act and Brown v. Board of Education.

As time passed, the intellectual justification for affirmative action has shifted its focus from fairness to diversity. Colleges argue that incoming college classes need a wide range of racial backgrounds and perspectives to fully realize their educational mission of training global citizens; without the additional push that affirmative action provides, these institutions claim, they would be unable to create diverse classrooms. This was the same rationale that O’Connor supported in Grutter v. Bollinger. Several technical and legal inconsistencies undermine Fisher’s case: she has graduated from another college, there has been no disagreement about the case in the lower courts, and O’Connor’s pronouncement in Grutter v. Bollinger is less than a decade old. More importantly, though, Fisher v. University of Texas compounds two opposing notions of equality. One side is the formalistic view that the constitution\ is color blind and any use of race in government policy is verboten. In this view, efforts to integrate public schools through busing are the constitutional and moral equivalent of Jim Crow—a beautifully simple but unfortunately misinformed perspective. The problem with Jim Crow and segregation was not merely that it used race as a factor in designing government policies, but that it sought to perpetuate a caste systemin which one race of people lorded over the other. The difference between policies of outright racial hatredand those designed to remedy the problems of discriminationare obvious. When Union generals created schools that catered to former slaves or proposed other programs to aid African Americans, they recognizedthat race consciousness, while troubling, is well-intentionedand can sometimes prove socially beneficial.The same spirit is present in the UT program, one which seeks to aid underrepresented minorities while providing the benefit of diversity to the entire studentbody. But with the replacement of O’Connor with Samuel Alito, it is clear the days of affirmative actionare numbered. Affirmative action may be entirely constitutional and even beneficial, but this will matter little if five members of the Supreme Court think otherwise. In the case of such a verdict, colleges will be faced with the difficulty of finding other ways to help many of the students affirmative action is already designed to assist. They might weight economic status and family background more heavily to compensate for their inability to consider race, giving preference to underprivileged and lower middle class applicants, who may be first-generation college students, come from a family unable to afford adequate standardized test preparation or whose secondary schools offered a limited curriculum. Such a program might command the support of Americans, who are just uncomfortable with racial categories. Of course, it would have its disadvantages as well; one of UT’s main arguments is that this solution would fail to promote diversity within racial groups in the same way that affirmative action does. But by allowing students to rise above the circumstances of their birth, it would further a meritocratic ideal that is at the heart of higher education in this country. No matter what the Supreme Court decides, that is a worthwhile effort.

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