Abigail Fisher Lost, but Challenges to Affirmative Action Aren’t Over

Despite the Supreme Court victory, activists say the fight over race and college admissions is just getting started.
The University of Texas at Austin. (Photo: Reuters)
Jun 23, 2016· 3 MIN READ
A veteran journalist and former White House correspondent for Politico, Joseph Williams is a freelance writer, blogger, and essayist in Washington, D.C.

It was a case intended to be a wrecking ball for affirmative action in college admissions. But in the wake of a strong Supreme Court defense, the infamous Fisher v. University of Texas case challenging the use of race as a factor in college admissions was destroyed on Thursday while affirmative action was left standing—if barely.

That’s the view of a coalition of African American, Asian American, and Latino civil rights advocates who reviewed the court’s 5–3 decision, calling it a powerful argument for on-campus diversity, which many educators say is vital for young people entering the 21st-century workforce.

RELATED: Passing Up Harvard: Qualified Black and Latino Kids Aren't Applying to Top Colleges

“What we have in this majority opinion is a clear way forward,” said Sherrilyn Ifill of the NAACP Legal Defense and Educational Fund in a press call. The opinion, authored by Justice Anthony Kennedy, supports diversity as “a critically important mission” in higher education while “closing off many of the doors that [affirmative action foes] had hoped would remain open,” Ifill said.

Marisa Bono of the Mexican American Legal Defense and Educational Fund concurred. The high court delivered “a clear and resounding message” that diversity can be considered in college admissions, she said. But she added that the court also underscored what supporters have long contended: that race, while important, is only one of several factors that determines who gets into the nation’s top schools.

“It must be a factor of a factor of a factor,” she said.

At issue is Texas’ admissions program, which guarantees admission to top students in every high school in the state. Called the Top 10 Percent program, it’s credited with substantially boosting racial and ethnic diversity on the Austin campus.

Demonstrators took part in a rally at the U.S. Supreme Court as the Fisher v. University of Texas affirmative action case was being heard in Washington, D.C., on Dec. 9, 2015. (Photo: Kevin Lamarque/Reuters)

However, Abigail Fisher, a white woman, sued over a segment of the policy in which other prospective students from Texas and elsewhere can get in based on other factors—including race and ethnicity as well as academic achievement. Fisher argued that the university had denied her admission based on her race; she subsequently was admitted to and graduated from Louisiana State University.

But in his majority opinion, quoting from a landmark desegregation case, Kennedy declared that a university is “in large part defined by those intangible ‘qualities which are incapable of objective measurement but which make for greatness,’ Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission.”

Amen, said Bono, who called the ruling “a green light” for other schools to fine-tune race-based affirmative action programs.

“The Supreme Court really solidified that a university has a compelling interest in providing education that flows from a diverse student body,” she said, noting that college graduates of the future will have to compete “in an increasingly diverse workforce and society.”

RELATED: UC Berkeley Has a Plan to Boost Black Student Numbers After Affirmative Action Ban

Besides exposing students to, arguably, their future colleagues, Bono said, the ruling confirmed that “the educational benefits [of diversity] are numerous and robust.”

Yet it’s unlikely the ruling will deter Edward Blum, the conservative activist behind the Fisher lawsuit, from his mission to completely dismantle affirmative action in college admissions.

His organization, Project on Fair Representation, has recruited Asian American students to challenge admissions policies at two elite schools: Harvard University, arguably the nation’s top private school, and the University of North Carolina, considered one of the best public colleges in the country.

Those suits “are the first of what are expected to be several similar challenges to other competitive colleges that continue to unconstitutionally use racial preferences in admission decisions,” Blum said in November 2014.

But Mee Moua of Asian Americans Advancing Justice said Blum is barking up the wrong tree.

Despite Blum’s claims, she said, data shows that admissions preferences aimed at African American and Latino students haven’t hurt enrollment of Asian American students, who support and benefit from those programs too. Blum, she says, is attempting to use students of Asian descent as a wedge to break up affirmative action for blacks and Latinos.

“Based on his logic, the role of increasing diversity on campus is a zero-sum game” with Asians Americans on the losing end, she said. “That’s just not the case.”

In fact, said Moua, Filipino Americans and other Southeast Asian Americans struggle against the same issue black and Latino students do when applying to college: systemic racism that, more often than not, shuts them out.

“Asian Americans know that they also benefit from affirmative action policies,” said Moua. Despite Blum’s stereotype, she said, “we are not the model minority.”