Last month the Supreme Court heard oral arguments in Fisher v. University of Texas, a case many court-watchers believe could lead to the functional end of affirmative action in college admissions. It is unusual that the issue is before the Court at all. It has only been nine years since the justices decided Grutter v. Bollinger, which many thought would govern admissions policies for at least 25 years. But the fact that we are revisiting the issue so soon is a testament to the relentless conservative legal campaign against affirmative action and related changes in the makeup of the Court.
While City University does not have an affirmative action admissions program, this case should still be of great concern to the CUNY community. Many observers believe that CUNY’s student body is becoming less rather than more racially diverse, a change they link to increased reliance on the SAT for admissions and effects of the recession. After a recent report by the Community Service Society (CSS) of New York noted the decline in black and Latino enrollment in CUNY’s senior colleges, CSS President David Jones remarked, “It’s astounding that Texas, a state not known for its progressive politics, recognizes the need to diversify its top educational institutions, but the City University of New York does not.” So while CUNY’s current policies are unlikely to be affected by the Fisher case, its future very well may be.
Legal Crossroads
Abigail Fisher is a white applicant who was denied admission to the University of Texas at Austin. Her lawsuit argues that she would have been admitted but for her race, because Texas maintains an admissions program that considers race as one factor for at least some of its applicants, and that this practice violates the Equal Protection Clause of the 14th Amendment.
To understand how we got to this legal crossroads, we need to look back to the origins of affirmative action and some of the cases that have shaped this policy since.
In June of 1965, President Lyndon Johnson outlined the purpose of affirmative action in a speech at Howard University. In that famous address he declared:
You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, “You are free to compete with all the others,” and still justly believe that you have been completely fair.
When that speech was delivered, African Americans had endured 246 years of chattel slavery and 90 years of racial subordination, rigidly enforced by Jim Crow laws in the South and willful neglect in the North. In 1965, only 11 years had passed since Brown v. Board of Education, and the end of legal segregation was still being bitterly opposed. Johnson, a Southerner, knew segregation. But by the time he had ascended to the presidency, his views on race had changed. In that speech, Johnson went on to say,
This is the next and the more profound stage of the battle for civil rights. We seek not just freedom, but opportunity. We seek not just legal equity, but human ability, not just equality as a right and a theory, but equality as a fact and equality as a result.
This last line, with its focus on results, became the cornerstone for affirmative action policies.
Johnson understood that America had an obligation to help repair the untold damage that had been done by institutional racism. While government programs alone could never accomplish this, he understood government had a key role to play. The 1964 Civil Rights Act and other new laws would prevent a return to legal apartheid, but affirmative steps beyond these laws were needed to undo the effects of over 300 years of racial oppression. While affirmative action policies drew immediate praise from the black community, there was equally swift opposition from many in the white community – including the academy.
The Long Retreat
In 1978, in University of California at Davis vs. Bakke, the Supreme Court began a slow but steady retreat from the original purpose of affirmative action programs. In this seminal case, four justices held that setting aside seats for students of color was a violation of Title VI of the Civil Rights Act. Justice Lewis Powell agreed, and added that the Davis plan was an unconstitutional racial quota that also violated the 14th Amendment.
The Court ignored the compensatory arguments that President Johnson had articulated and characterized affirmative action in increasingly limited terms. Still, Bakke did provide some hope for the continuation of affirmative action. Justice Powell wrote approvingly of the “Harvard plan” in which admissions officers considered race, but only as a small part of a holistic process in which other characteristics of the individual were considered. This holistic system became the model that most universities would follow.
In 1989 the court continued to narrow the ways that race could be considered. In Richmond v. J.A. Crosan Co. Justice Sandra Day O’Connor, writing for the majority, held that all state programs that consider race would have to survive strict judicial review. It didn’t matter whether their purpose was inclusion – as with affirmative action – or exclusion – as with Jim Crow laws. The Court further held that the state was barred from using race to address the effects of societal discrimination. That concept, she claimed, was too amorphous. Any use of race in a compensatory sense must be limited to specific, identifiable, individual victims of present discrimination, not those affected by its historical patterns.
The Crosan ruling simply ignored the fact that quality of life indicators showed (and continue to show) racial disparities almost everywhere. Unemployment rates, contracting, health care, access to credit, housing, even projected mortality rates, all revealed stark disparities drawn along racial lines. Education was not immune from these disparities. Urban schools, most of which by then were overwhelmingly black and Latino, were underfunded, had higher teacher turnover and tragically high dropout rates.
In 2003, with the case of Grutter v. Bollinger, what little remained of affirmative action was again called into question. In a bitterly contested 5-4 decision, the Court held that the University of Michigan Law School had demonstrated that diversity in the classroom benefited all students and had an important impact on shaping the cultural understanding of future leaders. They found the program to be sufficiently narrowly tailored, because the university used several factors to evaluate applicants: while race was used, it was not given decisive weight. The University of Texas became one of many schools to use Grutter as a legal blueprint for their affirmative action program
Uncertain Future
With Fisher’s suit, conservative activists have mounted a legal challenge to even this limited form of affirmative action. University of Texas admissions efforts, however, tracked the Grutter opinion so closely that the 5th Circuit held in their favor, saying that until the Supreme Court said otherwise, Grutter was good law, Texas was following the law, and Fisher did not have a case. But at least four Supreme Court justices, the number needed for the Court to accept a case for full review, felt otherwise.
Fisher represents a frontal assault on Grutter. Texas is unique in that most students of color are actually admitted under its “Top Ten Percent Plan,” enacted by the legislature in 1997. This race-neutral program fills 75 percent of the first-year seats by guaranteeing admission to any Texas resident who is in the top 10 percent of their high school graduating class. Ironically, the pool of students of color admitted under this plan is due in part to the continuing segregation in Texas public schools. Fisher’s lawsuit bypassed the Ten Percent Plan and focused its attack on the remaining 25 percent of admissions slots, where race can be a factor.
Fisher’s lawyers maintain that the 14th Amendment bars all racial classifications. This is their primary argument, and if the Court agrees, Grutter will be overturned. Their second line of attack is to argue that even if there is some benefit from racially diverse classrooms, Texas enrolls enough students of color through the 10 Percent Program, so there is no need for any race-based admissions to augment that number. Finally, they claim that assembling a critical mass of non-white students to further diversity is simply racial engineering. Even if there is some value to ensuring diversity, they contend that this is outweighed by the potential harm from considering race in any form.
Social Science Data
The University of Texas, supported by over 70 amicus briefs, has stood firm behind the social science data that was the critical point in Grutter, showing how students of all backgrounds benefit from racially diverse classrooms. While affirmative action began as a program to correct the effects of racism in society, if it survives it will be because data shows that its benefits extend beyond the students of color who are most affected by racial injustice.
Justice Anthony Kennedy will likely be the key vote on this question. Justice Elena Kagan recused herself because of her work when she was solicitor general, creating the potential for a 5-3 conservative majority – unless Kennedy sides with the liberal wing. This would create a 4-4 split, in which case Texas’s victory in the 5th Circuit will be preserved. The other conservatives, Justices Antonin Scalia, John Roberts, Samuel Alito and Clarence Thomas have previously expressed their emphatic opposition to affirmative action and their views have not changed.
Whatever the outcome, the Court’s approach to issues of race has been increasingly out of step with US reality. While scholars in history, sociology, psychology and anthropology have broadened our understanding of race, this court has moved in the opposite direction. Even though UT Austin has vigorously defended its program, it has never acknowledged that the most important reason to admit a critical mass of students of color is because of the myriad forms of racism in society that people of color from all socioeconomic strata continue to face. Despite racial progress, students of color know this all too well.
Most elected officials, however, even if they agree that racism in America is a continuing problem, have responded to conservative attacks on affirmative action in limited and defensive terms. Few candidates for office are willing to adopt the direct language and clear analysis of Johnson’s 1965 speech at Howard. Until this changes, any legal victories for affirmative action will rest on thin cultural and political ice.
If the Supreme Court ends or significantly reduces affirmative action at UT Austin, students of color will still enroll through the Top Ten Percent Plan. But the vast majority of colleges and universities in the country have no Ten Percent Plan to fall back on. If Fisher prevails, these institutions and the students they serve will wake up next year to campuses that are whiter and less diverse than at any time in the last 40 years – and the Roberts Court will declare this to be our new equality.
