Affirmative Action has been a hot button issue and a proverbial bad word since the landmark case of Bakke v. UC Regents in 1978. Bakke ruled the use of race in a “quota” system of college admissions unconstitutional. Simultaneously, it set a precedent which allowed the use of race or gender in the totality of an applicant’s academic portfolio. The basic premise underscored in this ruling was that institutions of higher education had the constitutional right to seek diversity amongst their student body. Yet, today, this right to diversity has been challenged once again.
In 2008, a young white woman named Abigail Fisher was denied admittance into the University of Texas at Austin. She subsequently filed suit against the school, claiming that her race worked against her in the applications process. And, she notes that she has had long-term suffering due to the rejection by UT. Her qualm with the system takes root in the Affirmative Action reaffirmation cases, Grutter v. Bollinger and Gratz v. Bollinger (2003). Both cases helped shape the race consideration method most public and private universities use in admissions today. Just this week, her case reached the Supreme Court of the United States (SCOTUS). And, according to the President of the University of Texas, these fundamental SCOTUS decisions are integral in understanding UT’s use of race in filling its ranks.
UT’s official brief filing noted that Fisher would not have gained admission into the University even with a perfect “index score” because of the highly competitive nature of the entering class of 2008. Conversely, UT’s current “automatic” admittance of the top 8% of high school students in Texas has already produced quite a bit of diversity at the highly coveted institution. The University explained further that more analysis “shows that white students with lower scores also were admitted, while many more minority students with higher scores than Fisher also were not offered admission.” This raises questions around the purpose of race or other “special circumstances” in the applications process at all if the 8% rule has sufficiently diversified the student body and does not yield any particular benefit to racial minorities.
But what seems most interesting in Fisher v. University of Texas et al. is the timing of this case. The Supreme Court is more conservative than it was in 2003 when Gratz and Grutter were decided. And, the conservative majority on the Supreme Court, which includes Chief Justice John Roberts, and Justices Samuel Alito, Clarence Thomas, Anthony Kennedy, and Antonin Scalia, may give Fisher the swing in favor that she is hoping for. Just a few years ago, all but Justice Kennedy advocated for an end to affirmative action on the whole. And, with liberal leaning Justice Elena Kagan recusing herself due to prior involvement, the outcome does not look positive for the UT lawyers.
Recently, the “Citizens United” Decision or Citizens United v. Federal Election Commission (2010) generated oodles of dialogue on the left and right about Supreme Court Justices “legislating from the bench.” But, the heavily contested decision to uphold President Obama’s sweeping healthcare legislation implied that the Court may not be one way or the other on constitutional matters. So what is the fate of Affirmative Action? Will we even know once the decision in this case has been made? The jury is out on that one.
Yet, one must wonder if this case has reached the Supreme Court out of necessity or out of political convenience. With the first Black president currently in office and a resounding desire from the American public to be “post-racial,” this case seems a bit out of touch. Though the issue of Affirmative Action seems to never have settled, it seems an odd time and an odd plaintiff for this attempt to undo the historical practice. What is clear here is that Affirmative Action will remain a point of contention as long as race is a consideration in any vetting process whether it be academic, professional or personal. How we work with that consideration remains to be seen. And how the SCOTUS treats it going forward will be decided in the coming weeks.