Fisher v. University of Texas: The End of Affirmative Action?

By, Nishant Keerikatte

In the upcoming case Fisher v. University of Texas, the Supreme Court will have to interpret the Equal Protection Clause of the Fourteenth Amendment in terms of college admissions process. The Court will be revisiting the decision in Grutter v. Bollinger, which put forth the framework for including diversity as a factor in the admission process. The University of Texas at Austin used the decision in Grutter as a basis for its own undergraduate admissions policy, which does factor in race as one of many factors.  With the decision expected in June, the Supreme Court is expected to reverse the use of affirmative action in the college selection process. This topic could become an important issue on which the presidential candidates can voice their opinions.

In 2003, in Grutter v. Bollinger, by a vote of 5-4, the Supreme Court decided to uphold the admission process of University of Michigan Law School, which represents the model often referred to as affirmative action. The Court held that a race-conscious admissions process may favor under-represented minority groups, but the admission process also considered many other factors and evaluated each factor on an individual basis. The Court also stated that Michigan Law School had a compelling interest in promoting class diversity. Justice O’Connor stated that three goals were better served by a diverse student body; increased perspectives, civic duty, and professionalism. 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.” (539 U.S. 306 (2003).

They also stated 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.” (539 U.S. at 317).

Fast forward several years to 2012, where student diversity has increased in universities across the nation. Justice O’Conner has been replace with Justice Samuel Alito in 2006. Although two judges with liberal backgrounds have been selected to the panel, one (Justice Elena Kagan) will recuse herself due to her involvement with the issue when she was the U.S. Solicitor General . This leaves 5 members of the Court being openly opposed to the continuance of affirmative action, and only 3 members with a track record of supporting affirmative action.

The case of Fisher v. University of Texas focuses on Abigail Fisher’s 2008 admission process. Ms. Fisher, a white applicant, was denied admission into the University of Texas at Austin (UT). UT’s admission policy guaranteed admission to the top 10% of students in all the public high schools in Texas. These students typically compose 80% of the incoming freshman class. The remaining spots are given based on the admission process of UT, which does include race as one of many factors. Ms. Fisher barely missed automatic admission, and failed to gain entry through the admission process. She is currently a senior at Louisiana State University.

There is no doubt that affirmative action has affected the landscape of college education, particularly of minorities within Texas. At UT, the policies were revised in 2004 to include consideration of race in selecting applicants. Before then, UT as well as public colleges and universities throughout the state were unable to distinguish and prefer applicants on grounds of race because of Hopwood v. Texas, the 1996 case in which the Fifth Circuit held unconstitutional the Texas law school’s race-preferential admissions process. Grutter made possible the return in 2004 to preferences in admissions since it effectively overruled Hopwood. University of Texas took this opportunity, and tailored its admission process to abide by Grutter’s teachings. Since UT’s adoption of a Grutter inspired admissions policy, the number of African-Americans attending the university has nearly doubled. The number of Latino graduates has increased by almost 50 percent. Today, the University of Texas is ranked sixth nationwide in undergraduate degrees awarded to minorities. The question before the Court is now whether this policy of using race as a factor in admissions has become outdated.

This case raises many interesting issues. Any decision the Court makes will potentially apply nationwide, meaning that racial minorities may find it more difficult to gain entrance to all public universities. Schools that devised their admissions policies in reliance on the Grutter decision will have to radically rethink their approach to admissions, depending on the school’s current policy of how race as a factor is used in the admissions decision. It is also fair to expect this decision to have far-reaching impact on private universities, and possibly even in workplace hiring practices. Will the termination of this policy just reverse any progress that has been made in the last twenty years?

Opponents of affirmative action will say the policy is counter-productive. Also, there is a growing sentiment that the current process is flawed by overvaluing race, and undervaluing the overall environment of the student. There is a sentiment growing that in the wake of this monumental decision, college selection processes will focus more on economic class rather than race. It will be interesting to see what the decision is, and how narrow the ruling of the court is. It is possible that in the future, colleges will reward students that come from lower socioeconomic families, rather than distinguish based on race. It is intellectual diversity, not racial diversity that will strengthen classrooms.


Grutter v. Bollinger, 539 U.S. 306 (2003)

2 thoughts on “Fisher v. University of Texas: The End of Affirmative Action?

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    1. First of all, let me say that I am glad there are some folks out there who are discussing this issue. (Dr. Helen and DADvocate are the ones on my peaosnrl reading list…)But I really think there is far too much emphasis put on the ‘pc culture’ and Title IX being at fault for the dearth of men in college.First and foremost, you’re going to have to deal with the anti-intellectual culutre that comes from men that is an equvalent to male on male crime. This starts in elementary school (or at least it did in mine), as quick learners were identified as the geeks and that was that. Grades mattered to them and didn’t seem to matter to other boys, who seemed far more interested in playing sports. Dads seemed far more interested in their sons’ little league teams then they were interested in their grades. We had far too few “renaissance men” whose parents encouraged both good grades and sports interaction.The little monsters we had to deal with (bullies) came after the geeks instead of the jocks because the jocks knew how to use baseball bats.Second, you have to look at the island/penitentiary that is today’s public high school. Block scheduling and hand wringing has cut high schools off from any element that shows high school boys that there is a world beyond graduation that they are going to have to be a part of.Third, and probably the most imporant (in my experience) deferred rewards. You can make a ton of cash working in construction, computers or the food service industry right out of high school (at least where I live). College classes just get in the way. If you do choose to get a degree, you’re not going to see the results of that for several years, you’re going to spend valuable resources and time on those classes and oftentimes they are classes with no real explanation of why you have to take them (if I had Pre-Calculus in High School, why do I have to take Algebra again in college?).In my experience, this deferred reward is far more chafing to men than it is to women. Scholarships are difficult to maintain, student loans are today’s equivalent of indentured servitude and even if Mommy and Daddy pay for the whole thing, you’re still rolling out with credit card debt.Triple this if you go straight to grad school (or have maintained the grades to do so), double the difficulty level of getting back in if you want to take a few years off and work down some of the debt (or maybe just have a little fun), triple the difficulty if you are a man who wants to start a family at a young age.Then there is the social pressure for a man to be ‘independent’ and take care of himself both through college and immediately afterwards. An entry level salary can barely keep up, so a lot of folks end up back in the food service industry: my roomate has no degree and waits tables. He makes at least twice as much as I do a year.When I was working in food service (immediately out of college) I was making (as a beginner) factory level wages, and was offered management of a restaurant. I could have done the same at 18 without college. Working in promotions (a job whose skills could be acquired in a garage band) I could be making 6 figures a year right now. I could have done that at 18 without college. 2 friends of mine have dropped out of college to work with computers, they make more than me and their degree holding wives. Another friend dropped out of college to work as a journalist, and went back later when he was making enough money at his job to take classes.Why go jump through the hoops that is college in the first place?

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