The timing of the US Supreme Court’s newest case couldn’t be more unfortunate—or fitting, depending on how you look at it.
College campuses across America right now are embroiled in racial conflict. In the last month, minority students at University of Missouri, Yale, Brown, and many other schools have accused their administrators of fostering disrespect or neglect around a series of race-related issues; in heated protests, boycotts, and calls for resignations, they’ve demanded tangible changes, from curricular updates to diversity improvements to campus police reform.
It’s against this backdrop of unsettled chaos that the US Supreme Court today (Dec. 9) begins its review of Fisher v. University of Texas II, a case that addresses the use of race as a factor in college admissions.
The II is in the name for a reason. Fisher is technically not a new case—it’s the second try of a case first heard by the court in 2012. It was brought by Abigail Fisher, a white woman rejected from the University of Texas at Austin in 2008, who claims the school’s race-conscious admissions policies unfairly helped minority applicants while discriminating against her. Though the Supreme Court heard the case, it tossed it down to a lower court for further review. The lower court sided with the University of Texas. This summer, the country’s highest court decided to hear it again.
Whatever happens next—in oral arguments that begin today, and over the next few months as the Supreme Court mulls a ruling—will likely affect not just the University of Texas, but all US universities. Colleges are following the case closely: A recent report from the American Council on Education found 89% of schools are “familiar” or “very familiar” with the case’s details and implications.
Given the sensitive racial climate at many schools in the country right now, some experts are calling it a particularly volatile time for the court to be grappling with this case.
“It’s quite possible that the way the court frames the discussion will be colored by the justices’ views of the campus protests,” Michael Dorf, a Cornell law professor, told the New York Times last week. Liliana Garces, an assistant education professor at Pennsylvania State University, wrote in The Conversation yesterday that the Fisher case now “matters more than ever.”
But—even without present circumstances playing into the case—affirmative action in college admissions is a thorny enough issue on its own.
Affirmative action’s tangled history—and uncertain future
Brown v. Board of Education, in 1954, is where some say it began.
The landmark case that ended racial segregation in public schools is often held as a shining example of fair-opportunity education in the US. That idea of “fair,” though, has since mutated.
The words “affirmative action” were first used by US president John F. Kennedy in a 1961 executive order forbidding government contractors from discriminating against employees on the basis of race. Soon after, colleges used the term for another purpose: They started actively weighing race as a factor in the admissions process, the idea being that an applicant’s diverse ethnicity is just as beneficial to a student body as, say, his or her intellect or athletic ability.
Legally, these policies pass muster—though with some stipulations. In the 1978 case Regents of the University of California v. Bakke, the Supreme Court said schools cannot set aside a fixed number of spots for minorities, but they can practice affirmative action as long as their reasons and methods are thoughtful and legitimate. The court echoed that ruling in a pair of 2003 cases, Grutter v. Bollinger and Gratz v. Bollinger, in which it said schools can consider race as a factor in admissions, but not with anything as structured as a point system.
Most Americans seem to approve of affirmative action. But recently, some US states have banned affirmative action policies in college admissions, instead advocating for race-blind or race-neutral considerations.
And now—the Fisher case.
As some have noted, the current case in front of the court is peculiar in its details: The University of Texas has complicated admissions rules that don’t apply to most schools in the US, public or private, making it possible the court’s conclusions will be narrow and situation-specific.
Lee Bollinger, who was the named defendant in the 2003 Supreme Court cases when he was president of the University of Michigan (and is currently the president of Columbia), tells Quartz he thinks the case’s unique facts are too “singular” to cause the court to overturn its previous rulings. ”The issues of affirmative action are rooted in history,” he says.
The Fisher case isn’t standing alone, though. Two lawsuits against race-based admissions policies at Harvard and the University of North Carolina-Chapel Hill have also recently cropped up and are pending in federal courts, swelling the issue.
Lawyers at Harvard submitted an amicus curiae brief for Fisher last month, saying diversity can “powerfully transform a student’s educational experience” with benefits that ”go to the heart of our democracy.” Bollinger, too, has continued to argue that affirmative action benefits students, schools, and society at large.
Critics, on the other hand, say the need for race-based affirmative action has come to an end. They say the cost of race-conscious admissions (i.e., rejecting students who may have gotten a spot had their race not been considered) is too steep. Some argue for a class-based admissions approach to diversity, or a focus on low-income student recruitment.
Where to, now?
As the Supreme Court trudges toward a tentative decision on Fisher in June 2016, questions abound. Is this an appropriate time for the country to rein in race-related initiatives, or to double down on them? And is it even fair to link the constitutionality of affirmative action with racial tension among students, professors, and administrators who are already on college campuses?
“This issue of Grutter and Bakke and Brown—it transcends these immediate issues. I don’t tie these two together,” Bollinger says. He adds: “What’s happening on American campuses now still has to play itself out.”