Will Supreme Court End Affirmative Action With Fisher v. University of Texas?

The Roberts court takes on affirmative action as it agrees to hear a University of Texas admissions case. Adam Winkler on the implications.

J. Scott Applewhite / AP Photo

On Monday, the Supreme Court agreed to hear a potentially landmark case that could end race-based affirmative action as we know it. Although just nine years ago the justices held that public universities could use race as a factor in admissions, much has changed since then, including the election of the first African-American to the presidency. For the University of Texas, whose admissions policy is now being challenged, the only change that matters is the new personnel on the Supreme Court. Since the addition of Chief Justice John Roberts and Justice Samuel Alito, the court has shifted decidedly to the right and voiced new hostility to government uses of race.

In 2003, in a case called Grutter v. Bollinger, the Supreme Court upheld the race-conscious admissions policy at the University of Michigan’s law school, reasoning that a diverse student body improves the education of all students. As the majority explained, “classroom discussion is livelier, more spirited, and simply more enlightening and interesting when students have the greatest possible variety of backgrounds.” A diverse student body also prepares students for their professional careers, as “the skills needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints.”

Yet this strong endorsement of race-based affirmative action came in a 5–4 decision in which the deciding vote was cast by Justice Sandra Day O’Connor—the nation’s first female justice and a well-known moderate. In 2005, O’Connor retired. President George W. Bush replaced her with Samuel Alito—a justice no one would call a moderate.

This one change already has led to the reversal of numerous prior precedents, from abortion rights to corporate political speech. Grutter appears to be next on the chopping block.

The Texas case began in 2008, when Abigail Noel Fisher, a white applicant, was denied admission to the undergraduate program at the University of Texas at Austin. Even though Fisher’s record in high school was not good enough to guarantee her admission, she believed she was turned away solely because of her race. In an effort to insure a diverse class of entering students, the University of Texas engaged in what Fisher called “blatant racial balancing.”

She is likely to find a warm reception for that argument in the Roberts court, which has yet to see a race-conscious affirmative-action policy it likes. Two terms ago, the justices voted 5–4 to overturn an effort by the New Haven fire department, which had a long history of racial discrimination, to institute a test for promotions that was designed to reduce the lack of minority representation. Both Alito and Roberts voted with the majority. In 2007, those two also joined the majority in a decision rejecting voluntary public-school-integration policies in Seattle and Kentucky, which had been enacted so that there wouldn’t be some schools that were nearly all white and others that were nearly all minority. Critics said the court had all but overturned Brown v. Board of Education.

That may be an overstatement, but it is clear that the court’s majority is not a friend to affirmative action. Chief Justice Roberts announced in the public-schools case, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Supporters of diversity are also hurt by another change in the court’s membership. Elena Kagan, the newest justice, has already announced that she’ll recuse herself because she worked on the Texas case when she was solicitor general. So that’s one less vote to uphold the use of race in admissions.

If the Supreme Court strikes down the University of Texas’s policy, it won’t help Abigail Fisher. She’s set to graduate from Louisiana State University this spring. But it will hurt racial minorities in Texas. Since UT’s adoption of its Grutter-inspired admissions policy, the number of African-Americans matriculating has nearly doubled. The number of Latino graduates has increased by almost 50 percent. Today, the University of Texas is ranked sixth nationwide in undergraduate degrees awarded to minorities.

It won’t only be Texas students who’ll be hurt by a Supreme Court decision striking down the use of race in college admissions. Any decision will apply nationwide, meaning that racial minorities will find it more difficult to gain entrance to all public universities. Schools that devised their admissions policies in reliance on the Grutter decision will have to radically rethink their approach to admissions. And white students, who will gain more slots, will also lose by having fewer diverse students to learn from once admitted.

The question for the Supreme Court is whether these are the kinds of changes we really need in higher education.