Supreme Court Spares Affirmative Action…For Now

Abigail Fisher filed the affirmative action lawsuit claiming reverse discrimination because she's white. Others say she just didn't make the cut-off. Image @Gawker

Abigail Fisher filed the affirmative action lawsuit claiming reverse discrimination because she’s white. Others say she just didn’t make the cut-off. Image @Gawker

In a 7-1 decision handed down on Monday, the U.S. Supreme Court spared affirmative action, a program first created by the Civil Rights Act of 1964 to give groups that have suffered discrimination in the past more access to higher education institutions. To this end, universities seek diversity within their student populations and race, ethnicity, native language, social class, geographical origin, and gender are sometimes taken into account when the university assesses an applicant’s grades and test scores.

But while the high court did not kill affirmative action outright, nor did it rule in its favor. Instead, the Court sent the case, Fisher v. University of Texas, back to the Fifth Circuit Court of Appeals for further consideration. According to the majority decision written by Justice Anthony Kennedy, the Fifth Circuit failed to apply strict scrutiny in its decision to rule in favor of the university admissions policy as executed by the university in question.

The case was first brought in 2008 by Abigail Fisher, who claims she was denied admission to the University of Texas at Austin because her race was held against her. The suit she filed asked the court to strike down affirmative action in higher education which would have ended a half-century of federal law providing minority students better access to higher education. The United States District Court ruled against Fisher in 2009 and the Fifth Circuit ruled against her as well. This led to the showdown in the nation’s high court where the Justices avoided making a direct decision on the constitutionality of the affirmative action policy of the University of Texas.

So did the Court do the right thing? Although the policy of universities will be subject to closer scrutiny by the court system from now on, the important thing is that affirmative action is still alive for the time being. But the Court’s decision does open the door for more challenges to the policy. If affirmative action were to someday be struck down, it would be a major blow for anti-discrimination efforts in the United States. The reason we have affirmative action in the first place is because it promotes and ensures equal opportunity for all qualified persons. Without it, it may be likely that many schools would deny admission to people such as African-Americans, as had occurred in many colleges throughout the South until the federal government intervened. Is a return to this discriminatory past possible? Perhaps not. But just because discrimination may no longer exist, it doesn’t mean we should repeal all anti-discrimination laws. It would be akin to saying that since women vote regularly we should repeal the 19th Amendment guaranteeing their right to vote.

Another question we should ask is should this case have been reviewed by the Court in the first place? Fisher filed the lawsuit claiming she is a victim of reverse discrimination. She claims the University of Texas at Austin denied her admission because she is white. But this sounds like sour grapes. From theĀ New York Times:

The admissions system that Ms. Fisher challenged is idiosyncratic. Three-quarters of applicants from Texas are admitted under a program that guarantees admission to the top students in every high school in the state. (Almost everyone calls this the Top 10 program, though the percentage cutoff can vary by year. Ms. Fisher just missed the cutoff.)

The remaining Texas students and those from elsewhere are considered under standards that take account of academic achievement and other factors, including race and ethnicity.

Those remaining students are not just those of ethnic backgrounds. Many are white, as well, and many do get admitted. It just so happens that Ms. Fisher had a bit of bad luck, like most people in the world experiences from time to time. Thousands, even tens of thousands, of students receive rejection letters from colleges every year. But Fisher seems to think she’s entitled to be admitted no matter what, even though she missed a cutoff which has been set every year by the school for decades.

The fact is, the University of Texas is hardly discriminatory towards white applicants. According to a Fall 2011 Enrollment Report, the demographics of the undergraduate student population are as follows:

White- 50.4%
African-American- 4.6%
Asian-American- 17.9%
Hispanic- 20.0%
Native American 0.3%
Foreign- 4.7%

Furthermore, women make up over half the student body. If anything, the University should probably admit more African-American students, but it seems there wasn’t anything dubious about Fisher’s rejection by the University of Texas other than what she imagined. But because of her lawsuit, the future of a major American policy that promotes diversity and fairness in higher education institutions, places of employment, and elsewhere is in serious jeopardy.

Hopefully, the Fifth Circuit will conclude once again that the University of Texas did nothing wrong and the Supreme Court will concur. But it seems more likely that, sometime in the future, the conservative-leaning high court will axe affirmative action by a 5-4 split decision, or a 5-3 split if Justice Kagan recuses herself as she did this time around. For now, affirmative action is still kicking, but its future is uncertain. That makes the future of anti-discrimination policies uncertain as well, meaning it may one day be much more difficult for minority students to have a fair shot at a quality education. And that day will be a sad day for America.