Access and Fairness in the Fisher Affirmative Action Case


Affirmative action raises difficult questions of access and fairness. Opponents argue that it discriminates against whites while proponents emphasize that it increases opportunities for underrepresented minorities. While concerns about fairness limit the scope and frequency of affirmative action, minority underrepresentation in highly selective colleges and universities continues to validate its use.

For almost forty years the Supreme Court has grappled with challenges to the scope and validity of race-based affirmative action programs. From the 1974 Defunis v. Odegaard case dismissed for mootness once the challenger graduated from law school, through the 1978 Bakke v. University of California Medical School at Davis case decided by a plurality opinion invalidating an affirmative action program maintaining a rigid racial quota in medical school admissions while upholding the use of race as a factor in such admissions, to the 2004 Grutter v. Bollinger case upholding an affirmative action program in law school admissions where race was used as part of an individualized, holistic process designed to achieve diversity in the classroom, justices have disagreed over the legality of affirmative action.

The latest challenge is Fisher v. University of Texas (UT) where the court will determine the constitutionality of an undergraduate affirmative action admissions program that accepts applicants in the top 10 percent of every high school within the state but then uses race as a factor for all other applicants in order to achieve a diverse student body. As the justices attempt to define the permissible limits of the use of race in higher education admission, it is critically important that we remind them of the role affirmative action has played in reducing racial inequality without violating notions of fairness.

Fairness has been a central theme in affirmative action litigation. White applicants denied admission have argued that they have been victimized by programs giving their places to less qualified minority applicants. According to litigant Abigail Fischer, “there were people in my [high school] class with lower grades who weren’t in all the activities I was in, who were being accepted in UT, and the only other difference between us was the color of our skin.” Yet college and graduate school rejections at highly selective institutions like UT are not so easily categorized. In fact, UT offered conditional admission to 47 students with lower test scores than Fisher of which five of those students were minority and forty-two were white. UT rejected 168 minority applicants with grades similar to Fisher’s.

While certainly there are whites who have lost opportunities to affirmative action, Fisher does not fall within that category. Fairness requires that applicants not be denied or accepted and not be unduly advantaged or disadvantaged solely because of race. Fairness does not mean that universities do not have the flexibility to accept a few minority applicants with lower grades and test scores than a rejected white applicant in order to increase diversity, – a proven value. This is especially true at publicly funded institutions like UT that have a long history of excluding racial minorities.

Even with affirmative action, percentages of Black and Hispanic students at highly selective academic institutions like UT fall well below their percentages in the overall population. Affirmative action opponents argue that it stigmatizes and demeans those who receive “preferential” treatment. Yet, minorities who are admitted through affirmative action programs perform well academically and improve graduation rates.

In weighing affirmative action, we should consider not only the opportunities created for minorities but also the advantages for everyone that accrue from a diverse environment. When affirmative action programs broaden access for individuals from underrepresented minority groups without substantially diminishing the admission opportunities of white applicants, the benefits far outweigh any harm.

In the majority opinion in Grutter, Justice Sandra Day O’Connor drew on research finding that diversity advances learning outcomes, “better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals.” In concluding, she added “it has been 25 years since Justice Powell approved the use of race to further an interest in student body diversity in the context of public higher education. Since that time, the number of minority applicants with high grades and test scores has indeed increased. We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

It has been ten years since Justice O’Connor referenced the end of affirmative action. Under her expectation, this effort has fifteen years remaining at most. Yet, the achievement of diversity in academic institutions like UT does not appear to be reachable within this time frame without the continuance of affirmative action. I hope the justices remember the reasoning of their wise colleague as they grapple, once again, with issues of racial inclusion.

F. Michael Higginbotham is the Wilson H. Elkins Professor of Law at the University of Baltimore and the author of Ghosts of Jim Crow: Ending Racism In Post-Racial America.

Access and Fairness in the Fisher Affirmative Action Case

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