The Importance Of Affirmative Action’s Victory In The Courts

On campuses across America, the issue of affirmative action remains a critical, and fraught, one. Eight states representing 29% of all U.S. high school students currently ban race-based affirmative action at public universities, and there are continual challenges threatening to dismantle it.

One of the most high-profile and important threats was Fisher v. University of Texas, a case involving the specious claim of Abigail Fisher, a white woman, that she was the target of racial discrimination during the college admissions process at UT-Austin. Today, in a 4–3 ruling, the Supreme Court made a crucial decision when it upheld the university’s affirmative action policy. By preventing further erosion of a policy that vastly increases minority enrollment, the ruling should be considered an important win for equality.

Justice Anthony Kennedy penned the majority opinion in the case with Justices Alito, Thomas, and Robert dissenting. (Kagan was recused.) Alito read aloud at length from his 51-page dissent — an action taken by justices when they feel particularly strongly about a ruling.

From Kennedy’s opinion:

“The race-conscious admissions program in use at the time of petitioner’s application is lawful under the Equal Protection Clause.”

Kennedy packed a lot into that one sentence; it should not be read as a rubber stamp of affirmative action across the board, in colleges generally, or even in perpetuity at UT-Austin.

The year Fisher applied for admission, competition at UT-Austin was stiffer than Harvard. UT-Austin automatically admits any Texas high school student graduating in the top 10% of their class, then uses a formula incorporating the applicant’s “Academic Index” (SAT score and high school academic performance) and “Personal Achievement Index” (race as well as subjective character factors). Because Fisher was not in the top 10% of her class, she was not guaranteed admission and, according to Kennedy’s opinion, she wasn’t able to prove that her race was the factor in her “Personal Academic Index” that denied her admission. And even if her race did play a part in her rejection, Kennedy’s opinion credits UT-Austin for having concrete reasons and goals for their affirmative action policy — ones he seems to have bought into as relevant and effective:

“A university’s goals cannot be elusory or amorphous — they must be sufficiently measurable to permit judicial scrutiny of the policies adopted to reach them. The record here reveals that the University articulated concrete and precise goals — e.g., ending stereotypes, promoting ‘cross-racial understanding,’ preparing students for ‘an increasingly diverse workforce and society,’ and cultivating leaders with ‘legitimacy in the eyes of the citizenry’ — that mirror the compelling interest this Court has approved in prior cases. It also gave a ‘reasoned, principled explanation’ for its decision, id., at ___, in a 39-page proposal written after a year-long study revealed that its race-neutral policies and programs did not meet its goals.”

So, because the university had previously found that race-neutral policies worked against their “concrete and precise goals,” he and The Court are giving their approval to their particular brand of affirmative action — for now. Kennedy is very careful to temper the celebration of anyone who saw a headline and thought the concept of affirmative action was now settled and unchallengeable:

“The University, however, does have a continuing obligation to satisfy the strict scrutiny burden: By periodically reassessing the admission program’s constitutionality, and efficacy, in light of the school’s experience and the data it has gathered since adopting its admissions plan, and by tailoring its approach to ensure that race plays no greater role than is necessary to meet its compelling interests.”

UT-Austin (and, presumably, other colleges and universities with similar policies) must continue to review the purpose and effectiveness of their affirmative action policy. This is the definition of a narrow ruling.

Could there be challenges by other privileged, aggrieved white folks in the future? Sure. But the standard is set: You have to prove either that the affirmative action policy isn’t well thought out and useful or that your race is the reason your admission was denied. Considering this was Fisher’s second bite at the apple and her attorneys were unable to make the case, it’s hard to imagine a successful challenge — or one unique and interesting enough for The Court to take it.

That doesn’t mean people won’t try.

As Rewire’s senior legal analyst Imani Gandy wrote last year ahead of the case’s oral arguments, “aggrieved white woman” Abigail Fisher is just “the latest in a line of white women who have filed lawsuits seeking to destroy affirmative action policies because they felt entitled to attend the school of their choosing, oblivious to the fact that destroying these policies will put everyone but white men at a disadvantage.”

Gandy’s description of Fisher as “practically an allegory for white entitlement” couldn’t be more on point — which is why there is no guarantee that following a narrow ruling like Kennedy’s, we won’t get the next entitled white lady stepping up with a claim just different enough to find standing. Also, with a likely ongoing vacancy and three justices over the age of 78 at January’s inauguration, the make-up of the court could be dramatically different in just a few short years. (Never leave us, RBG!)

With those qualifications out of the way, feel free to celebrate today’s ruling!

Monica Simpson, executive director of the National Women of Color Reproductive Justice Collective SisterSong, did just that in a statement earlier today:

“We are thrilled that the 4–3 ruling in Fisher v. Texas will allow colleges to continue to evaluate a person’s potential with an eye to the very real and specific barriers that far too many young people of color face. This decision means that schools will continue to be able to take appropriate steps to ensure educational opportunity for students of color. While there is still work to do to address racism on college campuses and to meet the goal of creating learning environments where all students can succeed, we celebrate this important ruling.”

Mari Schimmer, field director at URGE: Unite For Reproductive & Gender Equity, wrote an open letter to Fisher in 2012 when the Supreme Court initially took her case. Schimmer acknowledges that she once, like Fisher, thought race didn’t matter because her light skin tone allowed her to avoid the microaggressions and outright racism of others in her family with a more visible tie to their Mexican heritage:

“I’ve read some of your interviews to the media about this case and I have to admit — they made me cringe. You told the New York Times that you hope, ‘they’ll completely take race out of the issue in terms of admissions and that everyone will be able to get into any school that they want no matter what race they are but solely based on their merit and if they work hard for it.’ But even if you remove race from admissions criteria, it won’t remove race from the equation. Racism is embedded in the education system. Everywhere. Whether we’re talking about direct choosing, preferential treatment, or lowered expectations. And whether you realize it or not, we both benefitted from it.”

Schimmer goes right at Fisher’s ability to create a privileged life — despite being denied acceptance to her first-choice university. Fisher was accepted to Louisiana State University — and was able to cover the out-of-state tuition.

“According to the New York Times, you are employed in Austin,” continued Schimmer, “in an uncertain economy, where the majority of our peers face months or even years of unemployment, you’re doing all right. What you must understand is that none of this was a coincidence. Your success (anyone’s success, really) is only partially based on personal merit; the rest is determined by circumstances, and you had the good fortune to grow up white in America.”

Should another challenge to affirmative action policies find its way to the Supreme Court, let’s hope we have justices on the bench who are — at the very least — willing to evaluate the case before them based on the merits and not on their own biases around race in America. (Shade to Alito absolutely intentional.)


Chief Roberts guarantees opinions for the three remaining cases — Voisine v. US, Whole Woman’s Health v. Hellerstedt, and McDonnell v. US — will be announced on Monday morning at 10:00 a.m. EST. Read our introduction to SCOTUS Decision Season here.


Lead image of University of Texas at Austin clock tower: flickr/Phil Roeder