For the Supreme Court, the key question in Fisher v. University of Texas was this: “Is diversity in college admissions a compelling interest for the government, and are race-conscious policies a legitimate way of pursuing that interest?”
Put another way, is racism over and do we still have to deal with it?
To my—and many other’s—surprise, the Court decided to sidestep this question. Rather than support UT’s claim that its race-conscious policies fall within the Court’s standards for affirmative action, or Fisher’s claim that race-consciousness has no place in the business of college admissions, the Supreme Court—in a 7–1 decision written by Justice Anthony Kennedy—sent the case back to the Fifth Circuit Court of Appeals on a technicality.
Writing for the majority, Kennedy notes that the University of Texas’ affirmative action plan could only withstand constitutional scrutiny if “no workable race-neutral alternatives would produce the educational benefits of diversity.” The problem was that the lower court failed to ask if there were “workable race-neutral alternatives.” It took “on good faith” UT’s claim that its affirmative action plan was a strategy of last resort. This, Kennedy determined, wasn’t good enough. And so—speaking for the Court—he asked the Fifth Circuit to review the case with instructions to see if race is a determining factor in whether someone is admitted to the school. If it is, then the Supreme Court may choose to revisit the case, and decide in favor of Fisher.
It should be said that Fisher’s case is weak. For those unfamiliar with the details, Abigail Fisher was a white student who was rejected from the University of Texas at Austin. The university takes an unusual approach to filling its freshman class. Its policy is to accept the top 10 percent of students from each Texas high school. Highly segregated housing patterns means that this creates a kind of diversity within UT. For the slots that remained after accepting the top ten percent, administrators decided upon admission using a number of factors that included race. The system lacked quotas or numerical targets, but it was designed to increase diversity in each freshman class.
Fisher saw this as fundamentally unfair. “There were people in my class with lower grades who weren’t in all the activities I was in who were being accepted into UT, and the only other difference between us was the color of our skin,” she said in a video by the Project on Fair Representation, the conservative group that solicited her case. “For an institution of higher learning to act this way makes no sense to me.”
Of course, it begins to make sense once you understand the reality of her academic record. Even without UT’s affirmative action policy, she wouldn’t have been accepted to the school. She wasn’t qualified. Her grades weren’t high enough to bring her in under the top ten percent policy, and her scores weren’t strong enough to win her additional consideration after the fact. If she had been admitted despite her failure to clear several academic bars, it would have been because of non-academic factors (her legacy status, for example), or in her view (as it applies to minority students at least), an unfair advantage.
For supporters of affirmative action, this was close to the best possible outcome, with one caveat. While the Court declined to strike down the University of Texas’ approach, it did add a small twist to how it would evaluate affirmative action programs. In addition to strict scrutiny, colleges and universities must also show that race-consciousness is a last ditch strategy—the only thing left after exhausting “neutral” alternatives. This opens new challenges to affirmative action programs, while also reaffirming the idea that government has an interest in promoting diversity. A compromise, of sorts, between conservatives and liberals on the Court.
In all of this, it’s worth noting Justice Ruth Bader Ginsburg’s dissent to the ruling. For her, “race-neutral” programs are a kind of kabuki. For one, they depend on segregated housing patterns; as noted earlier, if the top ten percent program works to diversify UT schools, it’s because residential segregation produces a large number of equally segregated high schools. And second, if what we want is to use race in college admissions, then we should dispense with the fiction of neutrality and use race in college admissions. Here is what she writes in her dissent:
"I have several times explained why government actors, including state universities, need not be blind to the lingering effects of 'an overtly discriminatory past,' the legacy of 'centuries of law-sanctioned inequality.' Among constitutionally permissible options, I remain convinced, 'those that candidly disclose their consideration of race [are] preferable to those that conceal it.' Accordingly, I would not return this case for a second look."
This, I think, is the right position to take. In his 2007 opinion barring voluntary integration programs in Seattle schools, John Roberts wrote that “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” It was the clearest possible statement of conservative hostility to race-based remedies to race-based problems.
In the world as it exists, however, racial discrimination and the white supremacist policies of the past continue to have to a profound effect on the lives and fortunes of racial minorities. To argue that we should ignore race in dealing with these consequences is ludicrous, and does nothing but hamper the effort to build genuine racial equality and achieve lasting racial justice.