On Wednesday, the Supreme Court will hear oral arguments in Fisher v. University of Texas, a case many court watchers believe will lead to the functional end of affirmative action in higher education. That it is before the Court at all—an extraordinarily short nine years after the justices’ last ruling, which already shaped deeply admissions’ policies—is a testament to the conservative legal campaign against affirmative action.

The arguments of the plaintiff, a white UT-Austin applicant named Abigail Fisher who was denied admission, echo the bizarrely simplistic notion articulated by Chief Justice John Roberts. “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” Roberts has famously declared. Of course, what he really means is to ignore history, turn a blind eye to all the social science data on widespread inequity today and pretend that we live in a colorblind world. But Roberts leads a court that observers believe will agree with him on affirmative action, at least.

In order to understand how we got to this legal crossroads, it is important to look back to the cases that preceded Fisher.

In June of 1965, President Lyndon Johnson gave a speech at Howard University where he outlined the purpose of affirmative action as a government policy. 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 under Jim Crow laws, but only nine years had passed since Brown v. Board of Education declared that segregation was unlawful. Johnson, a southerner, had lived out segregation. But by the time he had ascended to the presidency, his views on race had changed. In the 1965 speech, he 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 it’s focus on results, became the cornerstone for affirmative action.

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 was passed under his administration and additional civil rights bills would soon follow. But affirmative steps beyond these laws were needed to undo the effects of over 300 years of racial oppression. Affirmative action, particularly in our colleges and universities became one among several initiatives to move the country in this new direction.

But by 1974, the first case seeking to declare affirmative action unlawful had reached the Supreme Court. Marco DeFunis applied to the University of Washington Law School and was denied admission while several minority applicants, including blacks, Chicanos, Indians and Filipinos were admitted ahead of him. The law school decided to let him attend while the case was pending. By the time his case reached the Supreme Court, he was almost ready to graduate. The Court decided there was no longer an issue and declined to hear the case.

Ironically, the state Supreme Court of Washington held that the university had satisfied the requirements of the 14th Amendment because integrating the legal profession was clearly a compelling state interest—one of the key benchmarks for whether a race-based policy is constitutional. The state court also noted that while the schools’ affirmative action efforts benefited people of color who had historically been under represented, it had also been used to admit veterans and other state residents, all with admissions scores lower than DeFunis. Today this would have simply been called a diversity model, and had the Supreme Court reviewed the merit of those arguments in 1974 the course of federal law might have been quite different. Living with affirmative action for a full generation might have avoided the many legal turns that would follow and taught the nation that this is a modest workable policy that in the end makes the country better.

The Legal Slide Begins

In 1978, in Bakke vs. University of California at Davis, the Supreme Court began to apply a slow but steady stranglehold to affirmative action programs. In this seminal case, Chief Justice Lewis Powell, Jr.’s court held that setting aside seats for students of color was an unconstitutional racial quota.

The Court ignored the compensatory arguments that President Johnson had articulated and instead cast affirmative action as a zero sum game. Whatever slight gains were to be made by students of color had to be weighed against the white side of the equal rights equation. If the scales weren’t balanced, the program was unconstitutional. But the Bakke ruling did provide some reprieve for universities. 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.

In 1989 the court went a step further, in Richmond v. J.A. Crosan. 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. If the court couldn’t figure out who the actual victims or perpetrators of racial discrimination were, even in historical context, the state couldn’t be trusted to do the job any better.

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 itself all revealed stark disparities drawn along racial lines. Education was not immune from these disparities. Urban schools, most of which are overwhelmingly black and Latino are under funded, had higher teacher turnover and tragically high drop out rates.

In 2003, with the case of Grutter v. Bollinger, what little remained of affirmative action was again called into question—but the justices kept a narrow opening for the policy. In a bitterly contested 5 to 4 decision, they 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 and while race was used, it was not given decisive weight.

The University of Texas was one of many schools that used the Grutter decision as a blueprint for their affirmative action program.

The Final Ruling on Affirmative Action?

The University of Texas system tracked the Grutter opinion so closely that the 5th Circuit approved it by saying unless and until the Supreme Court said otherwise, Grutter was good law and Fisher did not have a case. But at least four justices, which is the number needed for the Court to accept a case, obviously felt otherwise.

The Fisher case represents a full frontal assault on Grutter. Texas is unique in that most students of color are actually admitted under their Top 10 Percent program, enacted in 1997 by the state legislature. This race-neutral program fills 75 percent of the first-year seats by guaranteeing admission to Texas residents who are in the top 10 percent of their high school graduating class. Since race is not explicitly an issue there, Fisher’s lawyers have focused their attack on the remaining 25 percent of admissions slots that do consider race.

The plaintiff’s primary argument, which closely mirrors the previous statements of the Court’s now-dominant conservative wing, is that the 14th Amendment bars any and all racial classifications. The second line of attack is that even assuming there is some benefit from racially diverse classrooms, Texas has plenty of students of color enrolling through the 10 percent system, so there is no need for any race based admissions to augment that number. Finally, the plaintiff claims that assembling a critical mass of non-white students under the auspices of diversity is simply racial engineering. Fisher argues the potential harm from considering race at all is so great that the university can’t satisfy the narrow-tailoring requirements of the 14th Amendment. And if there is any value to diversity that outweighs its constitutional risks, the university can’t be trusted to balance those crucial distinctions. If affirmative action is permitted at all, Fisher argues, the Court should monitor every detail of diversity programs and shut them down as soon as they cross some yet-to-be-determined threshold.

If the Supreme Court ends or significantly reduces affirmative action at UT, students of color will still enroll in significant numbers through the 10 percent program. But there are thousands of colleges and universities in the country that have no 10 percent program to fall back on. If Fisher prevails, these institutions and the students they serve will wake up next year to a campus that is whiter and less diverse than at anytime in the last 40 years—and the Roberts Court will declare this to be our new equality.

Victor Goode is an associate professor at CUNY Law School and a board member of the Applied Research Center, which publishes Colorlines.com. He’ll be presenting at this year’s Facing Race conference in Baltimore.

Read this online at http://colorlines.com/archives/2012/10/will_the_roberts_court_end_affirmative_action.html


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