In Fisher v. Texas, Will The Roberts Court Buy The Reverse-Racism Myth?

A decision striking the affirmative action policy at the University of Texas could be the first of many assaults on equal rights this term.

photo courtesy of jcsizmadi via Flickr

One of the most anticipated Supreme Court arguments this term will happen on October 10th when the court reviews the affirmative-action admissions policy at the University of Texas-Austin. The case is poised to re-write affirmative action policies nationwide and could do for those policies and procedures what Citizens United did for campaign finance reform.

Here’s what’s at stake. Under the admission policy at the University of Texas, known as the “Top Ten Percent Plan,” the university automatically admits the top ten percent of graduating Texas seniors. From there the university considers an applicant’s race as one factor in alloting a percentage of available seats and only after the top 10 percent of high school seniors are admitted.

This is how the plan works. Race is taken into account as part of a personal achievement index, along with other factors including extracurricular activities and achievement. That personal index score, along with an applicants score on an academic index, create what admissions officers describe as a “holistic” view of a particular candidate. The University then reviews the plan every five years to make sure it is still working to achieve its stated goals of promoting diversity within its admitting classes. The plan was first passed by the state legislature in 1997 and is part of an ongoing effort to address the systemic racial discrimination in Texas schools. The goal of the plan was to bring university enrollment overall more closely in line with the state’s diverse demographics and to replicate that diversity at the classroom level and in major fields of study.

The plaintiff in the case, Abigail Fisher, sued the state of Texas after she was rejected for admission into the University of Texas-Austin. Fisher, who is white, did not place in the top ten percent of her graduating class and contends the race-based portion of the admissions policy is racially discriminatory. Admissions based on the Ten Percent Plan typically account for more than 85 percent of the available slots in the entering freshman class. That means Fisher was competing in a much tighter candidate pool, and she contends she didn’t make the cut is because she’s white.

Fisher ultimately went on to gradate from Louisiana State University but remains the central plaintiff in the case, insisting that her graduation from college does not render her claims moot. Her challenge to Texas’ admissions policy failed at both the trial court and the Fifth Circuit Court of Appeals. The appellate court decision, while not unanimous, came out strongly in defense of the program. According to the court, the state has a compelling interest in making sure the University of Texas try and achieve a “critical mass” in minority admissions as a means of promoting students to be professionals in “work and citizenship.” To meet that goal lawfully an admissions policy can use race only if it allows for a look at each individual applying for an admission as an individual and not as part of a racial stereotyping, racial quotas, or any separate admission groupings according to race.

Fischer’s appeal raises only one real issue: whether prior Supreme Court cases on racial equality, including the courts most recent affirmative action decisions permit the University of Texas to consider race at all in selecting its freshman class.

The last time the court looked at race-based admissions policies was in 2003, and a lot has changed in the court since then, most notably the replacement of Justice Samuel Alito for Sandra Day O’Connor. By a 5 to 4 vote, in Grutter v. Bollinger, the Supreme Court upheld the race-conscious admissions policy at the University of Michigan’s law school, reasoning that a diverse student body improves the education of all students. As the majority explained, “classroom discussion is livelier, more spirited, and simply more enlightening and interesting when students have the greatest possible variety of backgrounds.” A diverse student body also prepares students for their professional careers, as “the skills needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints.” Importantly, Justice Sandra Day O’Connor cast the deciding vote in Gruttner.

O’Connor’s absence, along with some clues from the Roberts court in other decisions leaves plenty to be concerned about in this case. When looking at the use of race-conscious policies to remedy historical discrimination in other contexts the Roberts court has been outright hostile. For example the Roberts court voted 5–4 to overturn an effort by the New Haven fire department, which had a long history of racial discrimination, to institute a test for promotions that was designed to reduce the lack of minority representation in the Department. In 2007 the court rejected voluntary public-school-integration policies in Seattle and Kentucky, which had been enacted so that there wouldn’t be some schools that were nearly all white and others that were nearly all minority. That decision has all but overturned Brown v. Board of Education. In that case Chief Justice Roberts famously announced:

“[T]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race” a signal that he believes the idea of reverse-racial discrimination is not only possible, but real.

Justice Elena Kagan has recused herself from hearing the case, which means there’s a chance the court could split four to four on its decision. If that happens the court will simply issue a simple, one-line decision announcing the Fifth Circuit decision is upheld. The decision will then be a binding outcome for Fisher and the University of Texas but won’t change the law or set precedent for any future cases.

That means the fate of affirmative action policies resides in Justice Anthony Kennedy’s hands since he is likely the necessary fourth vote. That’s a complicated problem. In Grutter Kennedy accepted the idea that affirmative action policies provide educational benefits that serve a government interest, so in theory he has signed on to the idea of affirmative action. But he rejected the policy before the court in Grutter, arguing in his dissent that the school had given too much weight to race for the policy to be considered constitutional.

To make matters worse, a Supreme Court decision in favor of Fisher won’t even benefit Fisher. She is a college graduate with nothing on the line in this case. Instead those that will be most adversely affected are those students who need the Ten Percent plan the most. Meanwhile efforts to undermine systemic, entrenched racial inequality will fall away to the myth of reverse-racism and an embrace of the idea of “affirmative action” as unlawful racial pandering.

And while a decision in favor of Fisher wouldn’t immediately affect civil rights cases in other areas—such as gender discrimination, disability discrimination and age discrimination—an embrace of a rhetorical framework that accepts the idea that Fisher was in any way a “victim” of discrimination could easily be adopted in those categories of cases as well. Given what we know about the right’s distaste of equality in favor of individual liberty, and given a socially-conservative voting bloc of justices on the Supreme Court, there’s no reason to think similar legal challenges to similar civil rights precedents wouldn’t follow.

So, like Citizens United is the Roberts court prepared to disregard decades of precedent and strike the use of race-conscious admissions policies and if so, does it even understand what it would be doing? Right now, it looks like it is on both counts which is distressing to say the least.