Fisher v. University of Texas: Supreme Court Could End Affirmative Action, and Efforts to Bridge Race


In some analyses, the election of President Obama and another Democratic senate has been attributed to a general leftward shift on social issues that divide the parties — primarily, abortion, same-sex marriage, and the expression of religion of public life. Recent polls now also show Americans moving to left the on gun control issues (whether it will be sustained long after the Sandy Hook shooting is debateable). But on at least one issue, there seems to be, if not a rightward tilt, a general reappraisal of a social issue long taken up by the left. In November, Oklahoma became the eighth state to ban affirmative action at public institutions, the latest move in a trend that reflects growing unfavorability of racial preferences in admissions decisions.

Oklahoma is of course a red state, but one of the most well-known examples of banning the practice comes from California. Nationally, in Fisher v. University of Texas, the Supreme Court will be making a decision in a few months regarding the Top 10 program at Texas schools, which grants admission to any high school student in the top 10% of her class. This strategy is designed to be an antidote to the negative academic affects the de facto segregation of Texas schools has on minority students. 

While affirmative action cases are no stranger to the Supreme Court, the consistently moderate-conservative court has never called the practice unconstitutional. The Court has rejected quota systems, but has upheld affirmative action insofar as race is only one factor among many considered for admission. Despite this consistency, though, changes in public opinion toward affirmative action reflect a profound rethinking of race, privilege, and diversity in America.

First, a change in the left's defense of affirmative action has slowly evolved since its beginning under President Lyndon Johnson. Affirmative action was originally conceived as a way of repaying a debt to blacks after the slavery and segregation of the past two centuries. As Johnson put it in a 1965 address: "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.”

After Regents of the University of California v. Bakke in 1997, this understanding was supplanted with the reasoning that diversity could be seen as a benefit to everyone at the university. As Justice Lewis Powell wrote in the Bakke decision, "The nation's future depends upon leaders trained through wide exposure to the ideas and mores of students as diverse as this Nation of many peoples."  

This change in reasoning underscores a fundamental shift in how we understand racial inequalities. The left's abandonment of the idea of a debt paid suggests a recognition at the core of a lot of discontent with affirmative action: that the most enduring inequalities are not the result of institutionalized prejudice, but the result of a bundle of factors that make it harder for some members of society to raise to the highest education and income levels — especially socioeconomic status.

Public opinion seems to reflect that same understanding of inequality and mobility. According to a 2003 survey, 55% of Americans sided with the Bush administration in Grutter v. Bollinger, the 2003 case that upheld racial preferences in college admissions in the name of diversity. The administration filed a brief calling such racial preferences unconstitutional, calling them "fundamentally flawed." On the other hand, 65% of Americans favored an affirmative action program, according to the same survey, that would give a leg up to socioeconomically disadvantaged students. 

President Obama himself suggested that socioeconomic status was the more important indicator in a 2007 interview. When George Stephanopoulos asked Obama whether his daughters should benefit from affirmative action policies, Obama answered they should be treated as "folks who are pretty advantaged." That is, of course, until he took a stance against the plaintiffs of Fisher v. University of Texas, who are essentially arguing just that: that disadvantaged students of all races should be the beneficiairies of affirmative action programs.

Of course, if people doubted the effectiveness of affirmative action in combatting racial inequalities in 2003, the years since have given us even more to think about. The leader of the free world is a black man (indeed, a twice-elected leader), but the economic crisis has dealt an even bleaker hand for the black community: the black-white wealth gap is the highest it has been since the 1980s, and black unemployment has been floating at about double that of white unemployment. Never before have we had such a lopsided vision of racial progress. Never before have we been so obligated to look into the causes of social immobility that run deeper than race.

At the same time, the issue of class representation on college campuses suggests a largely unimproved socioeconomic problem. A study by the Century Foundation found that while 74% of students on the most selective campuses came from the uppermost quarter of incomes in America, only 3% came from the lowest-income.

Interestingly, Fisher v. University of Texas, and the parallel debate on class and affirmative action, presents a line in the sand for the left. Liberals and progressives may now have to choose between championing a low-income or minority issue. While affirmative action may not actually be tilted to the right like some other issues, it has certainly blurred partisan lines, as conservative justices oddly take up the cause of addressing the class problem at American universities.

The affirmative action debate has always been rich with insight into our historical guilts and grievances. But, as we've seen recently, it also exposes shifts in how we think about privilege and social mobility, and the shape those issues will take in a rapidly changing America.