Today, the Supreme Court of the United States heard arguments in the second challenge to affirmative action this decade. In the case of Fisher vs. Univ. of Texas, the constitutionality of racial preferences in admissions decisions by public universities will be decided. The plaintiff in the case, Abigail Fisher, is a 22 year-old, white female who was denied admission to the University of Texas and later sued the university, claiming her race was held against her.
Only nine years ago, the Court ruled in Grutter v. Bollinger that race could be considered in admissions, but only as part of a "holistic review" that helps the university advance its academic and social mission. This morning, university attorneys cited similar arguments, asserting that the admittance of minority students with a range of backgrounds benefits the intellectual life of all students.
But the primary architect of Grutter v. Bollinger, Justice Sandra Day O'Connor, retired from the bench in 2006, and her replacement, Justice Samuel A. Alito Jr., seems more doubtful of race-conscious remedies.
The arguments presented by Fisher's attorneys and advisers take a multi-pronged approach outlined below by CUNY associate law professor Victor Goode:
The plaintiff’s primary argument, which closely mirrors the previous statements of the Court’s now-dominant conservative wing, is that the 14th Amendment bars any and all racial classifications. The second line of attack is that even assuming there is some benefit from racially diverse classrooms, Texas has plenty of students of color enrolling through the 10 percent system, so there is no need for any race based admissions to augment that number. Finally, the plaintiff claims that assembling a critical mass of non-white students under the auspices of diversity is simply racial engineering.
Fisher's approach hits at the center of the colorblind theory, arguing that race-conscious remedies should be eliminated because they constitute discrimination on the basis of race. But as Julianne Hing points out in her latest piece for Colorlines.com:
If affirmative action was designed as a form of redress for historical and contemporary racism, the evidence for its ongoing demand is unfortunately all around us. According to the 2010 Census, nearly 40 percent of black children and 35 percent of Latino kids live in poverty, compared to 12 percent of white children.
It's clear that colorblind policies make little sense outside of a colorblind society — of which, America is not. The disparities evident through so many social indicators teach us that race still captures something very significant about an individual, their experience, and their prospects for the future. If the focus of race-conscious remedies is to improve outcomes for minority groups, then now is not the time to restrict them. That said, if the five conservative justices — Chief Justice John Roberts, and Justices Antonin Scalia, Clarence Thomas, Anthony Kennedy and Alito — vote together, they could eliminate the Texas program and possibly affirmative action across the board.
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