Fisher v. University of Texas at Austin: You Need to Follow This Case

We interrupt your regularly scheduled “Lena Rants About Something” Wednesday column to bring you important news—in a few hours, the Supreme Court will be hearing arguments for Fisher v. University of Texas at Austin, a case dealing with affirmative action. For those of you unfamiliar with that term, it has a twofold meaning. There’s affirmative action in the collegiate sense, in which a university or college specifically admits a student based on some “minority factor,” e.g. race, gender, religion, sexuality, or nationality. There’s also affirmative action in a workplace sense, in which an individual is hired along same “minority” lines listed above. It is a process that evolved out of the Civil Rights Movement when universities and workplaces across the nation either realized or were mandated to realize that they needed to diversify their populations (and rightly so). Prior to affirmative action, for example, the Ivies were a predominantly white-straight-male crowd. Now, thankfully, the times have changed.

Let’s be clear—I am grossly oversimplifying both the concept of affirmative action and the processes by which it takes place, and you should definitely research the topic more deeply. However, for the sake of this article, I just wanted you to have a general sense of what’s going on. I also don’t feel informed enough to coherently and fairly rant about the topic (as I have with gun control/Scalia/5-4 decisions in the past), but the case is important enough that I wanted to act as a sort of resource center that could help you prepare for the arguments and for a better understanding of Fisher.

The background of the case is relatively simple (and you can read more about it here)—Abagail Fisher is a young woman from Texas who wanted to attend the University of Texas at Austin. She is rather accomplished and seemed like a strong candidate for the school, but she was rejected. She then attended Louisiana State University. She is now suing UT-Austin, claiming that she was rejected because of her race. Wait a minute—race? That’s right, Fisher is white, and says that her whiteness prohibited her acceptance. Hmm, seems like the facts aren’t so simple anymore. As any student at Brown can tell you, America has a complicated relationship with race. It also claims to be the “land of opportunity,” as well as the font from which freedom springs eternal. When race, opportunity, and freedom collide, things get a bit sketchy and, unfortunately, that’s where affirmative action comes in.—the Court isn’t exactly sure what it thinks about such programs.

In Regents of the University of California v. Bakke, the landmark 1977 affirmative action case that split the court 5-4 and offered more than one majority opinion, the Court decided that university admissions could use race as one of the deciding factors in admitting students. However, the Court struck down the use of “race quotas” in affirmative actions programs. The defendant, Allan Bakke, claimed that he had been rejected from UC-Davis because of the school’s 16% minority quota; in light of the case he was admitted.

In 2003, the Court upheld the University of Michigan Law School’s affirmative action policy because there were “other factors” that contributed to an applicant’s acceptance or rejection in Grutter v. Bollinger. In that same year, though, the Court struck down the University of Michigan’s undergraduate affirmative action program in Gratz v. Bollinger because in the University’s point-based admissions system where 100 points were needed for admission, 20 points were automatically granted to anyone considered an “underrepresented minority.” This policy hit too close to the no-quota rule from Regents v. Bakke, and as such was unconstitutional.

Four years later, in 2007, the Court once again struck down affirmative action in Parents Involved in Community Schools v. Seattle School District No. 1. Prior to the case, Seattle’s School District No. 1 had a policy in which children were assigned to their schools based on race “in order to achieve racial integration. However, a 5-4 court struck the policy down, arguing that creating diversity was not a “compelling state interest.”

As can be seen, the affirmative action cases are all highly contentious (see my earlier post about what 5-4 decisions mean for the Court) and are, in my opinion a little bit constitutionally ambiguous. Hence the importance of Fisher—this case is a huge opportunity for the Court to lay down clear guidelines about whether affirmative action really is constitutional and, if so, exactly how universities and workplaces may implement it. (It’s interesting to note that Elena Kagan is recusing herself; there can be no 5-4 decision, and some consensus will have to be reached among the justices. The Court wouldn’t make the mistake of going 4-4 on such an important case.) I myself am conflicted about the case, and am sure many of you are as well. On the one hand, if there’s no fair way to implement a program that’s supposed to be ensuring fairness, how can we let it continue? On the other hand, though, how can diversity be a bad thing? Either way, it’s up to Court to set things straight.