By Gloria J. Browne-Marshall
Affirmative action was saved, again. Last week, the U.S. Supreme Court voted 4-4 in Fisher v. Texas allowing the University of Texas-Austin to continue using its affirmative action policy to assure diversity in college enrollment. The absence of Justice Antonin Scalia, a renowned conservative, who passed away suddenly in February lead to the tie.
This is the second time the Texas affirmative action policy was placed on the chopping block. In the case known as Fisher I, the Supreme Court ruled that Texas must create a policy that allows for diversity without using race. Abigail Fisher, a White applicant, challenged the Texas admissions policy as discriminatory when she failed to be admitted. The Texas affirmative action policy did not contain any racial quotas.
Instead, the university admits the top ten percent of all high school students across the state. There is a second option for those students who fall outside of that ten percent cut-off. A second chance for admission is offered through a review of factors such as low economic status, primary language spoken in the home, extracurricular activities and race. Fisher failed to be admitted under the second tier process, as well.
The Equal Protection clause of the Fourteenth Amendment protects against race discrimination practiced by States. For decades, state governments enacted racially discriminatory laws which undermined the rights of African-Americans and other people of color. Because of its insidious nature, during the Civil Rights era, the Supreme Court determined that cases involving allegations of race discrimination by states would be reviewed under a higher legal standard called strict scrutiny.
However, in 1978, the Court ruled that Whites could be victims of “reversed discrimination.” In the infamous Bakke case, Allan Bakke, a 35 year-old White applicant challenged the affirmative action policy at the University of California medical school. The Court struck down all racial quotas at that time. But, it was legal to use race as a factor in assessing the application in students admissions. Fisher sued, giving rise to Fisher I. Several reverse discrimination cases followed in Michigan, resulting in narrowly upholding the use of race as a factor while threatening an end to affirmative action.
Abigail Fisher lost Fisher I in the lower courts. She challenges the use of race as even a single factor in admissions, claiming the use of race as any factor in admission violated her Equal Protection rights. In 2013, when the Court decided Fisher I, it was within days of gutting the Voting Rights Act of its pre-clearance protections against discriminatory voting laws. Chief Justice John Roberts warned the Court would not allow a policy to stand if it contained race as a factor.
However, affirmative action was given a temporary reprieve in Fisher I. The university was ordered to review its admissions policy and, if possible, substitute the race factor for some other measure that would provide a similar diverse student population. Then, return to the Court for a rehearing. Fisher II was that re-hearing. However, when race was removed from admissions altogether the number of Black students admitted dropped precipitously. The university determined that race was a necessary factor in its admissions policy.
During oral arguments in Fisher II, Justice Scalia was questioned whether it was a disservice to admit Black students who would not do well and suggested that they attend “less advanced schools” with a slower track” because they would be better off and admitting Black students through affirmative action policies was unfair to students of color.
Although the current focus of affirmative action is diversity the policy began in 1961 by President John F. Kennedy to address the historical racial discrimination that still permeated American society. With the Bakke case, however, the Court ruled that a White applicant could challenge affirmative action policies under the Equal Protection clause in cases called “reverse discrimination.”
Last wee, the Court ruled in Fisher II that Texas’ affirmative action program did not violate the Equal Protection clause. With a Court comprised of only eight justices, any tie means the lower court decision stands. Since Fisher lost in the lower court, the 4-4 outcome leaves the Texas affirmative action policy in place. Justice Anthony Kennedy, known as a champion of gay rights, had voted against affirmative action in Fisher I. However, in a progressive turn, Justice Kennedy wrote the opinion upholding affirmative action in Fisher II.
The lone African-American on the Court, Justice Clarence Thomas, wrote a dissenting opinion stating that “a State’s use of race in higher education admissions decisions is categorically prohibited by the Equal Protection clause” referring to affirmative action as a “faddish theory.”
Gloria J. Browne-Marshall is a constitutional law professor at John Jay College (CUNY). She is the author of “Race, Law and American Society: 1607 to present” and the forthcoming book “The Voting Rights War: The NAACP and the Ongoing Struggle for Justice.” She is the U.S. Supreme Court correspondent for AANIC (African-American News & Information Consortium).
Sincerely, Gloria J. Browne-Marshall
J.D./M.A. Associate Professor John Jay College of Criminal Justice
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-”The Voting Rights War: The NAACP and the Ongoing Struggle for Justice” (Rowman & Littlefield)
-”Race, Law, and American Society: 1607 to Present” (Routledge).
-”The Constitution: An African-American Context (Law and Policy Group Press).
-”The Constitution: Major Cases and Conflicts” (Pearson).