Fisher v. The University of Texas: The Death Knell For Affirmative Action?


Affirmative action, to staple in American public education in the age of modernity, may be on its last legs. Since 2008, Fisher v. Texas has been a volatile case emboldening passionate arguments from both sides of the affirmative action debate. On the Fisher side, people want to see race as a factor in admissions processes disappear. On the University of Texas side, people want to see race as an admissions factor remain. The fate of affirmative action, meanwhile, hangs in the balance. 

This case is currently in front of the court and has weight for all students representing public universities whether a member of a protected class or not. Therefore, with the Fisher case, we are witnessing the historical turning point in the constitutionality of affirmative action practices in the American public university system. With the Supreme Court leaning slightly right based mostly on the swing vote on the bench, affirmative action's days are numbered.

Beginning in 2008, the lower courts began to consider a case brought by a pair of white students who were denied admissions to the University of Texas at Austin. These white students claimed that while there were qualified for admissions based on a variety of factors, they were nonetheless denied admissions when their fellow, less-qualified students were granted admissions. After several years of tenuous decisions, arguments and appeals, the case now sits before the Supreme Court and will be decided on any day. At its foundation, the decision before the Court pertains to the legality of a 2003 Supreme Court ruling in Grutter v. Bollinger. In this case, the legality of limited consideration of race in admissions decisions was declared constitutional.

With the stage set and the general historical trend of the Supreme Court in the past several decades, affirmative action's future does not look very bright. The slight lean to the right, mostly based on the swing vote of Justice Kennedy typically, underscores the likelihood of the Court overturning Grutter v. Bollinger. However, if we have seen anything from the current Supreme Court, we have seen volatility and unpredictability, even among the traditional "solid votes" ... most notably with Chief Justice Roberts breaking the tie upholding so-called ObamaCare last summer.

Therefore, the trajectory of the Supreme Court in large cases like this one, with the exception of the 1960s, points toward an overturning of Grutter v. Bollinger and the ultimate end of affirmative action in the American public university system. The questions to pose after the imminent decision from the high court will be: What now? Will the end of affirmative action mean less minority representation in American public universities? If so, is that a good thing for the Fishers of the world? Or could it even be a good thing for those who formerly benefited from affirmative action by garnering acceptance to schools at which they are naturally qualified based solely on merit?

We can only wait and see what the Supreme Court will decide and be sure of one thing: one side will be scrambling to react. Which side will it be?