In the next few weeks (and as early as Monday), the Supreme Court will release its decision in Fisher v. University of Texas. The Fisher case is the latest case in a long line of affirmative action cases before the Supreme Court. More details about the facts of the case and my early predictions about what the Court would do are in a previous article. This article focuses on the implications of the Court’s decision. The entire case depends on whether the liberals or the conservatives can pull over the swing justice, Anthony Kennedy. If Justice Kennedy goes with the liberals, affirmative action will live to see another day, but will likely be narrowed to precisely how it is used by the University of Texas today. That is, the Court would be saying “this far, but no farther.” Alternatively, if the conservatives win over Justice Kennedy, the ruling will state that the explicit use of race in admissions procedures at any point, no matter how significant or insignificant, is unconstitutional.
What if the liberals win?
If the liberal side of the bench wins, affirmative action does not come out unscathed. Instead, there will be challenges to every use of race in school admissions, or hiring, that are arguably more expansive than the way it is used by University of Texas.
As a reminder, the University of Texas admits most of its students based on the fact that they are in the top 10% of their high school class. A significantly smaller percentage of students that are not admitted through the 10% rule undergo additional review. As a part of the review, race is one factor among many that is used to make a determination about admission to the university. According to University of Texas, the use of race is important to get at a very small subsection of minority students, students that would not show up due to their low socioeconomic status (also a factor in the admissions process) and that are not in the top 10% of their class, likely because they went a school where getting into the top 10% is particularly difficult. This group of potential students have been dubbed “the Cosby kids,” based on the television show, The Cosby Show. For those unfamiliar with the show, the show is about a black middle class family. Cliff Huxtable (Bill Cosby) is a doctor and Claire Huxtable (Phylicia Rashad) is a lawyer. Clearly, their children would not register as being in a low socio-economic profile, and it is likely that all went to great, rigorous schools where they did not fall into the top 10%.
For the University of Texas, the inability to attain these students means that the minority students they admit are typically from one or two sources, (1) students who went to a overwhelmingly minority school, also typically an under-performing school, and scored in the top 10% of their class, but in all likelihood would be in the bottom of the class at any top-performing high school, and (2) students that were not in the top 10% of their class, but performed particularly well given their socioeconomic background, i.e. they’re poor. Both of these sources produce a stereotypical minority applicant, one that is “smart for a black or hispanic kid,” struggled from poverty, and is not as well-prepared as their non-minority peers. University of Texas knows that presenting and reinforcing this stereotype is bad for everyone, especially non-minority students who begin to equate minorities with the stereotypes discussed above because that is all they encounter. To counter the stereotype, the University of Texas wants to admit students who represent a different subsection of the minority population. This diversity rationale is at the heart of the Fisher case, but is not likely at the heart of most admissions and hiring decisions where affirmative action is in place. It is possible that the Supreme Court, even if the liberals win, will boil down the use of race-based admission to this exceptionally narrow application.
What if conservatives win?
If the conservatives on the bench pull over Justice Anthony Kennedy, we should expect to read one sharp line, “the use of race in the admissions process is unconstitutional under the Fourteenth Amendment’s Equal Protection Clause.” Anything else that is said will be the necessary analysis, and some superfluous statements about how the Court acknowledges the problem, but thinks this isn’t the way to solve it. The effects of this type of decision would be far-reaching and immediate. As the admissions process picks up all over the country in August, admissions officers will be trying to figure out how to keep their diversity numbers up without violating the Constitution. Furthermore, the decision will not only affect public universities, but any university that receives federal funds, i.e. every university in the country. Diversity numbers at schools and colleges throughout the United States will fall, although it is difficult to say how much they will fall. For some schools, like the University of Texas, only the “Cosby kids” will fall out, but for schools that do not have a sophisticated, facially neutral way of admitting diverse students, the effects could be much more potent.
Soon, we will know what the Supreme Court has decided is the fate of Affirmative Action in the United States, however there is an interesting twist. The Supreme Court decided to take another affirmative action case next term, this is a bit odd because it seems to be nearly the same question that Court is wrestling with in Fisher. One side of the bench is particularly unhappy and will press the Court to revisit their affirmative action decision in Fisher only a few months after handing it down. It is anybody’s guess which side of the bench is pressing for the reconsideration. Either conservatives are unhappy and taking a second swing at bat, or liberals are unhappy and attempting to reopen the door. With that said, the debate about affirmative action in the United States is far from over.