Saschane M. Stephenson

On June 23, the Supreme Court of the United States provided a small, yet meaningful win for affirmative action in Fisher v. University of Texas

Affirmative action strategies are intended to improve education and employment opportunities for historically-excluded groups. But, opponents have relentlessly advanced the argument that such actions violate the 14th Amendment’s Equal Protection Clause which states that “no State shall deny to any person in its jurisdiction the equal protection of laws.”

Abigail Fisher is a White woman who did not get accepted to the University of Texas(UT) at Austin in 2008. And though she went on to graduate from another school, she filed a lawsuit saying she lost her spot at UT to a lesser-qualified African American because the university used race as a factor in its admissions process.

Since 1998, UT has filled 75 percent of its undergraduate class using a Texas-legislated “race-neutral” Top Ten Percent Plan.  The remaining 25 percent of seats are filled through a “holistic-review process,” which tallies points for letters of recommendation, community service and leadership experience, and “special circumstances” like language spoken at home, socio-economic status, etc., and finally race.  

According to the school, Fisher was denied admissions because she wasn’t in the top 10 percent of her high school class, and she didn’t score well enough under the holistic review process.

In 2013, a lower court ruled in favor of the university, which argued that its limited use of race in admissions was constitutional under the Supreme Court’s 2003 precedent-setting case, Grutter v. Bollinger.  Fisher appealed the decision and SCOTUS kicked the case back to the lower courts, saying they failed to use a “strict scrutiny” review standard.

Fisher came back to the high court, and on June 23, SCOTUS finally gave its opinion: Yes, the University of Texas (and thus others) can, narrowly, use race as a factor in its admission process.  Justice Anthony Kennedy articulated the majority opinion saying, “Considerable deference is owed to a university in defining…intangible characteristics, like student body diversity, that are central to its…educational mission.”  He said the University’s consideration of race was “a hallmark of narrow tailoring” and therefore was “not evidence of unconstitutionality;” …and that “there is no dispute that race is but ‘a factor within a factor within a factor.””

In his 51-page dissent, Justice Samuel Alito said the lawsuit was “not about policing universities that want diverse student bodies, but rather their reliance on race to get there.”  He felt administrators shouldn’t be able to justify “systematic racial discrimination” by simply saying “race-conscious” policies would help “achieve educational benefits of diversity.”

Justice Clarence Thomas joined Alito and Justice John Roberts in their dissent, saying every government determination to make race applicable to receiving or losing benefits “demeans us all.”  He reiterated that the Court was wrong in the Grutter v. Bollinger case and that he would have reversed the judgment in Grutter, since the University of Texas’ used it to craft its “race-conscious” admissions policies.

Fisher’s initial lawyer, Edward Blum, said he had hoped the Court would strike down affirmative action at UT, since he is also suing Harvard University for the same issue.  Blum is a modern-day civil rights nemesis who seems to be focused on destroying landmark achievements.  He is responsible for the 2013 Supreme Court decision gutting Section 5 of the 1965 Voting Rights Act, allowing new suppressive election laws like restrictive voter ID requirements and the elimination of same-day registration.

Pundits have posited that if Justice Scalia hadn’t died the opinion’s outcome would have been a 4-4 vote instead of 4-3 in favor of the University of Texas.  You may recall Scalia’s smack-in-the-face comments during last December’s oral arguments in Fisher. “It does not benefit African-Americans to get them into the University of Texas, where they do not do well, as opposed to having them go to a less-advanced school … a slower-track school where they do well,” he said at the time.

Commenting on the decision, Blum said this positive affirmative action ruling in Fisher was a “backward” step “for the original, colorblind principles civil rights” and that it could bring about an erosion of the “social fabric that holds us together as a nation.”

I’m just not sure which upside down lens he’s looking through, but the Supreme Court got this one right.