Fisher v. UT Austin: The End of Affirmative Action as We Know It?

by Sally Chung

The U.S. Supreme Court’s history of affirmative action rulings has led to a dead end, in which the University of Texas “has to argue in favor of the system it really ought to be arguing against.” The legal catch-22: “Those who want to advocate for racial consciousness can only do so by recourse to reasoning, set forth by the Supreme Court, intended to restrict racial consciousness.”


Fisher v. UT Austin: The End of Affirmative Action as We Know It?

by Sally Chung

Win or lose the battle, there is no option within the bounds of this discourse but to lose the war.”

Fisher v. UT Austin is the latest case in the saga against affirmative action. It raises the question of whether the success of a race-neutral alternative requires a university to stop using race as a factor in admissions.

It's full of bad arguments and should be impossible to win.

A brief examination of two issues featured in the case: the definition of "critical mass," and the "minimal effect" argument-shows how arguments advanced by the plaintiff, Fisher, and conservative justices of the Supreme Court force the University into an unworkable bind. Moreover, debate over Texas' so-called "race-neutral" plan puts the University in the perverse position of arguing in favor of something it should be arguing against. The only way for progressives to "win" Fisher, or any other argument over the constitutionality of affirmative action, is by upholding unsavory precedents that invalidate the very racial consciousness we ought to be fighting for. Win or lose the battle, there is no option within the bounds of this discourse but to lose the war.

The definition of "critical mass”

In Grutter, the Court decided that universities may consider race as a "plus" in evaluating an applicant's file in order to enroll a "critical mass" of minority students. This "critical mass" is described as "a number that encourages underrepresented minority students to participate in the classroom and not feel isolated... or like spokespersons for their race." Universities may, in pursuit of this "critical mass," maintain flexible goals or target ranges for minority enrollment. Universities may not, however, be so specific as to "impose a fixed number or percentage that must be attained" because that would be a quota, which is patently unconstitutional.

In order to prevail, the University must vigorously deny that racial justice has anything to do with it at all.”

The Fisher case, in a departure from precedent, faults the University not for being overly specific but for being too vague. In oral argument, Fisher criticizes the University for failing to establish "even a working target for critical mass," claiming that it is impossible for the University's program to be narrowly tailored if there is not a defined target to tailor towards. Chief Justice Roberts further demands the University to tell him the precise number of minorities it would take to establish a "critical mass." But the University cannot possibly give a concrete number without being accused of using a quota. The University can take one of two stances and is damned either way:

* If the University does not have a specific definition for critical mass, its program cannot be narrowly tailored and is therefore unconstitutional.

* If the University does have a specific definition, its program uses a quota and is also unconstitutional.

Of course, the notion that there is some magical "critical mass" pedagogically suited to delivering the optimal amount of educational benefit from ethnic diversity is complete nonsense. The idea comes from Justice Powell's non-controlling opinion in Bakke, the first Supreme Court case to address racially conscious university admissions. Powell argued, and the Court in Grutter affirmed, that there is only one constitutionally permissible justification for affirmative action: "to obtain the educational benefits that flow from an ethnically diverse student body." In so doing, Powell rendered unconstitutional any justification that sought to remedy past racism or counter the effects of current societal discrimination. But the real reason why we should want affirmative action is not for the purported flowing educational benefits. We should want affirmative action for precisely the reasons Powell argued against – to advance racial justice by ameliorating the legacies of America's racist past and accounting for societal discrimination in the present. Instead of pretending to chase after a "critical mass," the University ought to freely and boldly defend its affirmative action policy as a stand against racism. But the University cannot make this argument. Indeed, in order to prevail, the University must vigorously deny that racial justice has anything to do with it at all.

The "minimal effect" argument

Fisher also makes the argument, drawn from Parents Involved, that the University's affirmative action program is unconstitutional because it does not admit enough minorities. This is curious enough on its face, as it essentially amounts to a white person claiming affirmative action should be dismantled for failing to deny admission to more white people. The "minimal effect" argument asserts that an insignificant increase in minority enrollment is not enough to warrant the violation of white people's right to equal protection, and that the same small outcomes should instead be achieved through race-neutral alternatives. This is a maddening argument: first the Court severely narrows the permissibility of racial consciousness to delimit its impact, then it claims that because racially conscious programs have a minimal effect, looking at race is unconstitutional.

* If the University instituted a straightforward racially conscious program to meaningfully increase minority enrollment, it would be using race as a determinative factor, which is unconstitutional.

* If it does not use race as a determinative factor, the University can't meaningfully increase minority enrollment, which is also unconstitutional.

Texas' "race-neutral" Top Ten Percent Plan

The alternative at issue in Fisher could hardly in good faith be considered race-neutral. Texas' Top Ten Percent Plan, which guarantees all public high school seniors in the top ten percent of their class admission to any public state university, was enacted post-Hopwood with the express intent of increasing minority enrollment. It is furthermore undisputed that the Ten Percent Plan depends upon the racial segregation of Texas' high schools in order to function.

Fisher, by arguing that the Ten Percent Plan adequately serves the compelling interest of generating the "educational benefits that flow from diversity," inadvertently advocates for the simple ethnic diversity that not only contradicts precedent but also would warrant explicit racial consciousness. The Ten Percent Plan is a blunt instrument that increases minority admissions without any attention to the holistic, individualized review required by Bakke and Grutter; it seeks to admit minority students simply because they are members of minority groups, albeit via facially race-neutral means. If Fisher wants to argue that this indiscriminate plan satisfies the compelling interest in diversity, then that interest must be in simple racial diversity because that is all the Ten Percent Plan accomplishes. If the interest is in simple racial diversity, then the University's program should look at race in order to be narrowly tailored to serve that interest. Looking at race would therefore be constitutional, and Fisher would not have a case. It's a self-defeating argument enabled by an unqualified devotion to colorblindness that prevents Fisher from recognizing the Ten Percent Plan for what it really is – a racially conscious effort to increase minority admissions.

The Ten Percent Plan depends upon the racial segregation of Texas' high schools in order to function.”

Conversely, in order to defend its program of affirmative action, the University must argue that it doesn't want simple racial diversity and that therefore the Ten Percent Plan is not enough. This is a problem because while the University should not defend the deeply problematic Ten Percent Plan, it should definitely be fighting for racial diversity for the sake of racial justice. But instead the University has to assert that what it really wants is to mitigate the significance of race – it has to endorse the holistic and individualized review that Powell instituted to curtail the effectiveness of racially conscious admissions. It has to argue in favor of the system it really ought to be arguing against.

This is the crux of the problem with the affirmative action debate: those who want to advocate for racial consciousness can only do so by recourse to reasoning, set forth by the Supreme Court, intended to restrict racial consciousness.

When winning is losing, and losing is too. The possible outcomes of Fisher run a narrow gamut from bad to worse. The Court could:

* uphold the University's program as constitutional;

* rule that though diversity is a compelling state interest, the University's program is not narrowly tailored to serve that interest; or

* overturn Grutter to assert that diversity is not a compelling state interest, and therefore that all racially conscious admissions programs are unconstitutional.

The possible outcomes of Fisher run a narrow gamut from bad to worse.”

First, while a decision that upholds the University's program would be relatively good, it would ultimately mean that affirmative action as it is presently construed and the jurisprudence underlying it would remain unchanged. Powell's troubling opinion, which notably manipulated the Fourteenth Amendment's Equal Protection Clause to protect whites from racial discrimination at the expense of minority rights, would once again be reinforced. Such a decision would fortify the status quo and encourage the continued neglect of racial justice. Second, a ruling that the University's program is not narrowly tailored would conceivably require – despite Grutter's unequivocal statements to the contrary – the exhaustion of race-neutral alternatives and relegate racially conscious programs as a last resort. This would only bolster the delusion of colorblindness, aggravating the idiocy of trying to address racism by pretending that racism doesn't exist. Finally, the Court could decide to overrule Bakke and Grutter, reject diversity as a compelling state interest, and completely foreclose the constitutionality of taking race into account. This final outcome's implications are so alarming that it could provoke a breakaway from the stifling confines of the prevailing affirmative action debate. Or it could just render legal recourse to racial justice impossible.

The only way for minorities to "win" this case is by arguing that the University is in complete compliance with Supreme Court precedent inimical to racial consciousness, and convincing the Court to produce yet another opinion further entrenching Justice Powell's legal artifice in Bakke as the proper interpretation of equal protection.

The only conceivable victory is not a victory in the least, but a perverse circumstance in which racial minorities must buttress the existing system that legitimates their continued oppression.

Sally Chung is a research analyst for a public interest law organization in Los Angeles. She graduated cum laude from Amherst College with a B.A. in Black Studies. She can be reached at [email protected].


A death or a "murder" w/o a funeral?

First of all kudos to a great analysis.

Godspeed to you on your studies  Please keep your critical thinking skills sharp and focused and let your intellect and compassion guide your decisions.

Second, I humbly submit that Affirmative Action (AA) has been a dead letter for some time, speaking from both personal experience and objective observation.   AA exists to the extent it embraces or parrots The Business Case for Diversity, i.e. top brass says we need a Black, red, yellow or brown face to reach our targeted consuming audience.

I have mixed feelings regarding its "demise" because of my beliefs.  While I understand the import of a legal framework that protects AA, I  nonetheless feel that the existing framework--even left untinkered--is wholly inadequate, hollow.  And furthermore, I submit that the existing legal framework obscures the reality that there is no AA, and hasn't been for some time.

AA has been dead for years, but lacking a corpse to symbolize the death, to make it real and provide needed closure.  Presently AA is filed under the "missing persons" or "unsolved mysteries" category.  Understandably, since we can't find the "body" (some legal or policy or legislative edict) we haven't planned for the funeral?

It's death was preceded by institutionalizing the social, cultural, emotional, and political biases inherent in our collective embrace of and unwillingness to dissect what networking really meant.  We all fell for the "game."  Social/work-place oriented media has only propelled this trajectory of disparities.

The article below is insightful and instructive for a couple of reasons.  First, the extent to which is gives Obama Admin. a free pass on their abysmal efforts at job creation in general and a job program targeting Black unemployment in particular.  And second, we are treated to an "expert" opinion that Black UNEMPLOYMENT rates are due to White's finding greater affinity with--GASP!!--Whites, in the hiring context.  Pithy "expert opinion" mind you, even supports my anecdotal "evidence" and why I feel AA has been dead for a while.

Excerpt:  “Without Racism” (the "expert's book) revealed that economic racial disparities are fostered by explicit racism that plays out in everyday events, such as networking and institutionalized racial bias, which is endemic in the jobs market."

Duh.....profound analysis/observation by the "expert" or simple as hell? (perhaps the Brookings Inst. or the Cong. Black Caucus or the Urban League or the Chamber of Commerce or Prof. Skip Gates or Soledad O'Brien can treat us to more "studies," a documentary even, what do ya think, yeah or nay?)

The "experts" findings reminds me of listening to Huggy Lowdown, the Celebrity Snitch, on Tom Joyner's Morning Show when he makes light of the obvious:  "Who Knew???!!!"

p.s.   For contextual analysis, the Michigan Chronicle and it's sister publication the Michigan Citizen pride themselves as top dog when it comes to "the most" Black Nationalist/Leftist (on-line and print) newspapers in America.

Really?  "Who knew???!!!   And who'd a thunk that LinkedIn ain't really the shiggity?

p.s.s.  But hey, let's never mind the OBVIOUS SH**T, let's keep playing the "victim" instead of building alternative institutional outlets, our own jobs, economies, entrepreneurs, venture capital sources, telling Black folks to leave lotteries and Pick 6's alone, some fundamental financial literacy...let's keep writing and studying about the sh**t  cause we ain't sure, not completely positive mind you, more workshops and conventions are needed right?

F***k!!!  In the words of Marvin Gaye:  "Makes me wanna holler throw up both my hands!"

Also Note this ProPublica Article RE Fisher vs UT's top 10% Prog

A Colorblind Constitution, What Abigail Fisher's  Affimative Action Case is Really all About' [@ ]

It turns out the driving force behind this case is one rich 'Good Ole Boy' & UT alumnus Ed Blum- who just so happens to be behind the another case also before the SCOTUS court to roll-back [neutralize / neuterize] the 1965 Voting Rights act.

Because why go after UT's non-raced based admissions program, based on admitting those top 10% of grads from all of TX hi-schools, unless you know that if the Roberts led [& Uncle Judge Thomas style] SCOTUS court strikes down UT's top 10% admission prog as a race-based quota system [NOT!], them affirmative action [which the main beneficiaries have actually been white women according to Slick Willie] in the US is effectively dead!

This article explains how these cases pushed by Ed Blum are effectively an insidious attempt to nullify the 14th & 15th Amendments.

Great Point Beverly: Capitalism a Love Story

Strangely, the enemy of my enemy IS sometimes my friend.

College athletics is a multi-billion dollar industry so its exempted.  (Check our Bill Rhoden's Forty Million Dollar Slaves for more)

Here's the bottom line:  As it becomes increasingly apparent that some (not all) White Institutions want to push for Black exclusion and marginalization in all manner of mainstream America ( including their beloved Right to Vote--funny how some God and Country White Folks simply don't want folks to vote) and given that we can expect this madness to continue unabated, the REAL question becomes how do we channel our energy and resources?

I guess I'm asking how and where is my energy best channelled?  Do I try to change folks who despise me to love me through public policy, or do I understand and accept that the only integration that counts is ECONOMIC INTEGRATION?

We have HCBU's and accordingly the instutional and physical plant framework is already there: undergrad programs,  law schools, B schools, Med Schools..  What are we really clamoring for that we don't already have?  It ain't like Black grads of UT law school are getting hired by top law firms in the world, hell same for Harvard for that matter.  Wake up.

This is my entire point about being a willing victim.  I got a tip for all:  society is evolvling BACKWARDS not forward, sorry but this ain't the Age of Aquarius, so AA willl be debated 50 to 100 years from now, if we humans exist that is.

If I'm wrong, what if any signs are there that speak to a different reality?  Hell poor Melissa Harris Perry getting her ass chewed by the Right Wing as we speak, and she ain't Harriet Tubman.