The Texas Affirmative Action Case

The U.S. Supreme Court today heard arguments in the case of Fisher v. University of Texas at Austin, in which two white women are suing Texas’s flagship university, arguing that the school’s affirmative action program—and therefor their rejection for admission—constitutes a violation of the Equal Protection Clause of the Fourteenth Amendment.

The Supreme Court heard its last a major affirmative action case, Grutter v. Bollinger, in 2003. Justice Sandra Day O’Connor, who wrote the majority opinion (allowing race to be considered in admissions decisions) in that case, said she expected the new policy to last for 25 years. She wasn’t counting on the changing composition of the court.

According to an article By Adam Liptak in the New York Times:

The questioning was exceptionally sharp, but the member of the court who probably holds the decisive vote, Justice Anthony M. Kennedy, tipped his hand only a little, asking a few questions that indicated discomfort with at least some race-conscious admissions programs. He told a lawyer for the University of Texas at Austin, which was challenged over its policies, that he was uncomfortable with its efforts to attract privileged minorities.

“What you’re saying,” Justice Kennedy said, “is what counts is race above all.”

One of the central questions the more liberal judges seemed to have was whether or not Abigail Fisher, the white woman denied admission to the University of Texas, really suffered the sort of wrong that gives her reason to sue at all.

Affirmative action policies, in principle, exist to address past wrongs committed against ethnic minorities. By admitting many students from historically disadvantaged backgrounds, universities can help to improve the situations of the racial groups as a whole. Universities also prefer affirmative action policies because such programs allow them to promote racial diversity on campus, which is theoretically beneficial to learning and the exchange of ideas.

The “address past wrongs” part of affirmative action is more concrete, implying that at some point past wrongs might be fully addressed and the program could end, having completed its mission. The “diversity of viewpoints” part of affirmative action, the part universities particularly like, is more ambiguous. Diversity of viewpoints is always a good thing in higher education, after all; enthusiastic support for that principle means, ultimately, that affirmative action policies might stick around forever.

Fisher seems to bypass these justifications altogether, arguing merely that the entire concept of favoring race in college admissions is unfair. Fisher argues that the mere presence of an admissions policy that rejects her, while admitting ethnic minorities with lower grade point averages and standardized test scores, causes her to “suffer an injury that falls squarely within the language and spirit of the Constitution’s guarantee of equal protection.”

But how grievous an injury is this, really? It’s clear Fisher has standing to sue here at all. It’s not as if her failure to be admitted to UT-Austin consigned her to a life of pain and economic hardship. She recently graduated from Louisiana State University and now works as a financial analyst in Austin, Texas. Has she suffered at all?

Daniel Luzer

Daniel Luzer is the news editor at Governing Magazine and former web editor of the Washington Monthly. Find him on Twitter: @Daniel_Luzer