The Supreme Court sent the Fisher case back, but make no mistake: Affirmative action is dead

President Obama speaks to college students at Dartmouth. His administration supported the University of Texas' argument.
President Obama speaks to college students at Dartmouth. His administration supported the University of Texas' argument.
Image: Reuters/Jason Reed
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The US Supreme Court just side-stepped making any major decision in Fisher vs. University of Texas and asked the lower courts for a do-over on the affirmative action case. Somehow, keeping the issue alive denies the reality that I and so many other beneficiaries of set-aside programs know: Affirmative action is already dead.

It was 20 years ago this summer that I decided what I wanted to be. For two weeks, I joined black, Latino, and Asian teenagers from New Jersey and toured newsrooms, met reporters and editors, pitched story ideas, and had copy ruthlessly (and professionally) edited. The program, known as the Minority Journalism Workshop, unfolded in dozens of places across the country, summer after summer. Corporate sponsors loved taking pictures with us.

Today, the teens still gather, but a 2006 lawsuit forced the workshop to open itself up—to everybody. The Center for Individual Rights filed suit on behalf of a white teenager who tried to get into a version of the program in Virginia and says she was rejected due to her race. The two parties eventually settled, and the workshops now operate under different names (Urban Journalism Workshop and Multicultural Journalism Workshop, for example). I’ve returned in recent years as a speaker, and while there’s still lots of participants of color, the mission feels a bit different, a little more like camp than calling.

This shift is hardly isolated to media—or even the loss of special programs in the private sector. When the University of Texas rejected Abigail Fisher in 2008, a group called the Project on Fair Representation took up her case. But affirmative action has come under attack as early as kindergarten.

Consider what’s happening among New York City schoolchildren vying for a seat in gifted and talented programs. Districts used to rely on subjective factors, such as teacher recommendations, to decide who to let in. To help make admissions fairer and classrooms more diverse, it centralized the process and imposed a blanket cutoff on test scores. Yet officials failed to foresee what New Yorkers, especially wealthy ones, will do to get into a good school: They prep. So now, while more than two-thirds of the city’s school population is black or Latino, they make up only 27% of the gifted seats.

New York is allegedly among the most liberal cities in the world, so imagine the scenario across the country as tracking children by achievement levels becomes popular once again. Wouldn’t progressive parents want their children to attend schools reflecting the racial and economic composition of their city? Not at the expense of their child’s spot. (Even if it means the term “gifted” is now defined by kids with parents who could afford a tutor.)

Historically, the US has had an ambivalent relationship with affirmative action. In more recent years, political correctness lapsed in favor of fuzzy, ill-defined goals like diversity and inclusion, where everyone has a story of hardship and everyone qualifies. Budget cuts and lean hiring structures haven’t helped matters, but they allow the excuses to mount: the all-white male panel includes someone with a disability, the company’s leadership includes a gay person, the summer intern was raised by a single mother. Sometimes, we just shrug our shoulders and say we couldn’t find anyone.

This is not to discount the legitimate, many faces of diversity. But meanwhile, there’s been a very real erosion of racial equality in myriad US institutions, college campuses to science labs to corner offices to, yes, newsrooms.

In sending the Fisher case back for further review, the Supreme Court raised the bar on schools by saying they must attempt to use “race-neutral alternatives” to achieve diversity on campus. Sadly, we already know what the results of that experiment look like.