The Dark Cloud the Supreme Court Just Cast Over Affirmative Action

The Roberts court is uniquely hostile to affirmative action. And now that it has agreed to review a challenge to the University of Texas's admissions program, all bets may be off for affirmative action in higher education.

By Victor Goode Feb 22, 2012

In 2003 in Grutter v. Bollinger former Justice Sandra Day O’Connor, writing for a 5-4 majority, said that in 25 years the use of race in university admissions should no longer be necessary. After leaving the bench, she added that this wasn’t meant as an expiration date. She simply hoped that as equal educational opportunity became the norm that colleges would no longer need affirmative action to diversify their student bodies.

But yesterday the Supreme Court agreed to review the lower court’s decision in Fisher v. University of Texas–and now all bets may be off for the future of affirmative action in higher education.

The long odyssey begins with the Bakke case in 1978, in which the court struck down a quota system. But in Justice Lewis F. Powell’s concurring opinion he argued that diversity played an important role in exposing students to perspectives and points of view different from what might occur in nearly all-white classrooms. Therefore, achieving diversity in the classroom was a compelling reason to consider race, as long as the admissions process carefully balanced race as one factor among many that were reviewed.

This rationale for affirmative action became the norm for many colleges and universities, until it was appealed to the Supreme Court in 2003 in the case of Grutter v. Bollinger. The admissions programs at the University of Michigan and its law school were sued by plaintiffs claiming that even a limited use of race in admissions constituted unconstitutional discrimination against white applicants. The Supreme Court upheld the law school’s plan in an opinion written by Justice O’Connor while striking down the undergraduate admissions system. The problem with the university program was that it gave too much weight to the consideration of race, while the law school survived constitutional scrutiny by a single vote because it had adhered more closely to the Powell rationale from the Bakke case.

For many in the civil rights community, affirmative action seemed to once again be settled law. The main concern was whether Justice O’Connor’s 25-year prediction for the legal life of affirmative action would hold true.

So in the aftermath of Grutter many colleges and universities, shaped its admissions policies to conform to what the court said was constitutionally permissible.* Reserving a set number or percentage of seats for students of color was clearly unconstitutional. It was also unlawful to base an admissions decision on race, if that trait became the determining factor.

What colleges could do was consider race and other factors, such as class, along with the more traditional criteria such as grades and test scores. If the applicant was reviewed as part of a holistic package, then race could be one of several factors considered.

This rationale from Grutter is the reasoning that the Fifth Circuit Court of Appeals applied when it upheld the UT program.. By agreeing yesterday to review that decision, the Supreme Court may be signaling its intent to chip away at the foundations of Grutter–if not overturn it completely.

What’s at Stake in Texas

The Texas program is unique. The Texas legislature passed a law mandating that the top 10 percent of each high school graduating class would be granted admission to the state university system, including the flagship campus at Austin. This created an opportunity for black and Latino students who attended largely segregated schools to qualify for admission, even though their high schools didn’t offer the same quality of college preparation as better funded and mostly white suburban schools. It also provided opportunities for white students from small rural districts who might not have the same level of preparation. The new system accounted for about 81 percent of the admissions to the university.

But the Fisher case does not challenge this part of the admissions scheme.

Abigail Fisher was not part of the 10 percent program and was denied admission to the university.* She sued and claimed that she was unfairly discriminated against because the university used race as a criteria for the remaining 19 percent of admission seats. So in theory, even if the court overturned that part of the admissions system, it would still leave the "top 10" program in place. While this would likely reduce the level of diversity at the University of Texas, it would leave most diversity admissions in place.

But the real target here may not be the Texas 10 percent program. In his dissenting opinion in Grutter, Justice Clarence Thomas castigated affirmative action advocates for their "liberal paternalism." He argued that schools like Michigan want both the prestige of high admissions scores and a diverse student body, even though many students of color don’t meet that standard. Chief Justice John Roberts and Justice Samuel Alito, who replaced Justice O’Connor, are equally strident in their insistence that race should never be used in school policy.

The Roberts court is in fact uniquely hostile to affirmative action. In 2007, Jefferson County, Ky., attempted to integrate its public schools through a student assignment system using race to determine the percentage of black, white and Latino children in each school. Even though the program was approved by an elected school board and approved by voters in a referendum, the Roberts court struck down the plan as an impermissible use of a racial criteria. Rarely has a court been so emphatic in its declaration that racial criteria are only appropriate for carefully crafted, court-supervised remedies for intentional discrimination. Integration, if it is to happen at all must simply be the choice of individuals, not the policy of school boards.

While the issues decided by the lower court in the Fisher case are fairly narrow, it is not beyond this court to use this case to put its emphatic ideological stamp on an issues that several justices believe was improperly decided, and affirmative action is clearly one of those. Add to this mixture the fact that Justice Elana Kagen has recused herself and that Justice Kennedy, another member of the conservative block, has never supported an affirmative action case.

None of this bodes well for the future of affirmative action. If the court overturns Grutter, the greatest impact will be felt in the nation’s more prestigious colleges and universities, especially the Ivy League. Because of the competition for entry into these schools the diversity of their student bodies depends heavily on their ability to use a composite admissions system that includes race as a factor. With the court’s review of the Fisher case, a solid conservative door may be about to slam shut on the future of affirmative action.

Victor Goode is an associate professor at CUNY Law School and a board member of the Applied Research Center, which publishes

*An earlier version of this post incorrectly identified Abigail Fisher’s first name. It also stated that the UT program was created immediately following the Supreme Court’s 2003 Grutter decision. Rather, the program developed in stages, starting in the late 1990s.