Fisher v University of Texas: Is the Supreme Court Getting Ready to Kill Affirmative Action?


The Supreme Court surprised many in March by agreeing to hear an appeal of an appellate court decision in Michigan that prevented the state from banning the use of affirmative action in university admissions. It was already expected to rule this summer on the case of Abigail Fisher, a student who alleges a violation of her rights under the equal-protection clause after she was denied admission to the University of Texas at Austin.

Whether the court makes a decision in Fisher's cases this summer, or whether they wait and combine the two cases together next year, change in affirmative action policy seems to be on the horizon. In the last major affirmative action case heard by the Supreme Court, Grutter v Bollinger in 2003, the court acknowledged that schools have a "compelling interest" in promoting diversity — research has shown not only that more diverse schools lead to greater student achievement, but that employers value those who were educated in a more diverse environment. In the interest of advancing such diversity, schools can use affirmative action as one part of a holistic evaluation system — no quotas, no hard numbers.

The justices also contended, however, that this cannot be a permanent policy in American higher education. It was made clear the use of affirmative action in college admissions is a temporary measure to be undertaken while universities, secondary schools, and other stakeholders come together to create more systemic solutions to address the lack of minority students in elite institutions of higher education. Justice O'Connor wrote in the majority opinion that they expected affirmative action to be used for no more than 25 years.

Many argue that affirmative action actually decreases minority student achievement given the "mismatch" theory that through affirmative action, minority students are admitted to schools where they do not have sufficient academic preparation to succeed, and are therefore more likely to drop out before graduating. But the issue of diversity remains. After banning race-conscious admissions in California schools, the percentage of Asian-Americans at UC-Berkeley rose from 37% to 46% in a span of 10years. Not nearly enough has been done to increase the access that minority students have to resources that would prepare them for an elite institution. If we were to ban race-conscious admissions at this point, we would be leaving an entire segment of society behind, with certain avenues of achievement effectively closed off to them.

But comments in the past few years from different justices seem to indicate that they might not be as willing to allow affirmative action this time around. Are our "25 years" up 15 years too early? Do race conscious admissions still have a place in American society?