Future of Affirmative Action Unclear as Supreme Court Spars

A ruling on one university’s admissions process could have repercussions for colleges around the country.
Demonstrators take part in a rally at the U.S. Supreme Court as the affirmative action in university admissions case was being heard in Washington, D.C., on Dec. 9. (Photo: Kevin Lamarque/Reuters)
Dec 9, 2015· 2 MIN READ
Samantha Cowan is an associate editor for culture.

Controversial since its inception in the 1960s, affirmative action is once again being debated by the United States Supreme Court. The oral arguments heard on Wednesday in Fisher v. University of Texas reveal the stark divisions between the justices regarding both its effectiveness and its legality.

“What unique perspective does a minority student bring a physics class?” Chief Justice John Roberts asked during Wednesday’s opening hearing, according to the official court transcript.

Justice Sonia Sotomayor said she benefited from affirmative action and noted that college campuses are still rife with racism. “They are having racial incidents on campuses where students of color are complaining that they feel isolated,” said Sotomayor. “What more do they need?”

Racial tensions are high across college campuses, with students of color protesting a lack of diversity programs, insufficient support from the administration to combat race-based threats, and buildings named after Woodrow Wilson—a former president and a supporter of the Ku Klux Klan.

The highest court in the nation took a second look at the case of Fisher v. University of Texas on Wednesday, after knocking it down to a lower court in 2013.

Abigail Fisher claims that her 2008 application to UT was denied because she was white. UT’s admission process automatically accepts students in the top 10 percent of their high school class, which accounts for 75 percent of the student body. The remaining 25 percent are considered under a “holistic approach,” which includes extracurricular activities, test scores, and race. Fisher was in the top 12 percent of her high school class and thus set in the secondary pool of potential students. She claims less qualified minority students were accepted, while university officials maintain that Fisher would not have been accepted even amid a race-neutral application process, according to The New York Times. Of the 47 students admitted to UT who had lower test scores or grades than Fisher, 42 were white and five were black or Latino, according to court documents.

Fisher has since graduated from the Louisiana State University and would win a $100 reimbursement for her application fee if the court ruled in her favor. But if the court decides in Fisher’s favor, the case could have far-reaching implications.

“People in the universities are worried that we will kill affirmative action through a death by a thousand cuts,” said Justice Stephen Breyer, according to the transcript.

Former President John F. Kennedy issued an executive order in 1961 for federally funded projects to “take affirmative action” to ensure that people of color had equal employment opportunities. In 1978, the Supreme Court imposed limitations on affirmative action to ensure that racial majorities did not suffer reverse discrimination, but it was upheld within universities. In 2003, the Supreme Court upheld affirmative action in higher education once again in Grutter v. Bollinger in regard to University of Michigan Law School’s application process. The high court ruled 5–4 that a “narrowly tailored use of race in admissions decisions” creates a diversity that benefits the entire student body. Within that ruling, the justices estimated that affirmative action could end in 25 years or so, by 2028.

“Are we going to hit the deadline?” Roberts asked UT lawyers. “Is this going to be done, in your view, in 12 years?”

Justice Antonin Scalia, a longtime opponent of affirmative action, posited that application policies like UT’s might have harmful effects on black students.

“There are those who contend that it does not benefit African Americans to—to get them into the University of Texas where they do not do well, as opposed to having them go to a less advanced school, a less—a slower-track school where they do well,” said Scalia.

Scalia appears to be referring to a brief about mismatch theory written by UCLA law professor Rick Sander, which states that students chosen for elite universities based on qualities other than grades alone will suffer academically and are more likely to drop out. However, conflicting research has found that when students’ educational backgrounds are taken into consideration, mismatch theory does not exist, indicating that quality high schools have the primary impact.

A federal court of appeals ruled against Fisher again last year, finding that UT could take race into consideration for its applicants. Now the case is back in the Supreme Court’s hands, and the eight justices—Justice Elena Kagan has recused herself—will likely rule on it next year. Justice Anthony Kennedy is expected to be the swing vote.