Fisher v. Texas: How Obama Should Talk About Affirmative Action

How Obama should talk about the Supreme Court’s new affirmative action case.

How Obama should talk about the Supreme Court’s new affirmative action case.

The law, lawyers, and the court.
Feb. 21 2012 1:18 PM

What Obama Should Say About the Texas Affirmative Action Case

He should support class-based preferences that help all low-income students.

Will President Obama take a firm stand for class-based affirmative action as the Supreme Court hears Fisher v. Texas?

Alex Wong

The U.S. Supreme Court’s decision today to take a case challenging affirmative action at the University of Texas will jumpstart the national conversation about the morality and legality of racial preferences. That’s potentially perilous for America’s first black president, politically speaking. But it’s also an opportunity for Barack Obama to embrace a new forward-looking vision of affirmative action—one that seeks to achieve racial diversity by alternative means, such as giving a leg up to economically disadvantaged students of all races.

The Supreme Court has long upheld the limited use of racial preferences, because universities argued that there was no other way to achieve the important goal of racial diversity in higher education. But the facts in the Texas case challenge that assumption in a way that could upend earlier rulings and the rationale behind them. Here’s the background: Texas is the site of an unusual experiment in affirmative action that’s not based on race. In the 1990s, the University of Texas was barred from using race in admissions by the 5th Circuit Court of Appeals. (The landmark ruling is called Hopwood v. Texas.) To its credit, in response to the ruling, the University of Texas did not simply throw up its hands and give up on diversity. Instead, the university adopted two race-neutral alternatives: a class-based affirmative action program for economically disadvantaged students of all races, and another program that automatically admitted Texas graduates who were in the top 10 percent of their high school class. In practice, these programs actually produced slightly more racial and ethnic diversity than was achieved in the days before Hopwood when race was employed.

In 2003, however, the court effectively nullified Hopwood by giving a green light to universities to use race as the basis for affirmative action, in the case of Grutter v. Bollinger, involving the University of Michigan Law School. At that point, Texas decided to retain its program of class-based affirmative action and its top-10-percent plan, but also to add racial considerations back into the affirmative action mix. The new Texas case that the Supreme Court has just agreed to hear was brought by Abigail Fisher, a white plaintiff who was denied admission at UT-Austin. She sued to challenge the reinfusion of race into the universities’ admissions decisions.


When the case is argued in the fall, all eyes as usual will be on Justice Anthony Kennedy, the swing justice. Like many Americans, Kennedy wants diversity on college campuses but doesn’t like racial preferences. Kennedy dissented in Grutter in part because he didn’t think the University of Michigan had proven that the only way schools can achieve racial diversity is by employing racial preferences. The court, Kennedy wrote, should “force educational institutions to seriously explore race-neutral alternatives.” In a 2007 decision striking down racial integration plans in primary and secondary schools in Louisville and Seattle, Justice Kennedy declared that the individual classification of students by race should be used only as a “last resort.”

Now in deciding Fisher v. Texas, Kennedy seems likely to join the conservative justices John Roberts, Samuel Alito, Clarence Thomas, and Antonin Scalia in striking down the use of race at UT—and in establishing a national rule that universities must employ race-neutral alternatives before resorting to racial preferences. (Justice Elena Kagan has recused herself.) In fact, considerable research supports the likely conservative-driven approach—by showing that Justice Kennedy is right, and there are other ways to get to racial diversity. The University of California system, for example was barred from using race following passage of a 1996 voter initiative, but has still managed to increase racial and ethnic diversity by giving a leg up to low-income students and by admitting students who are in the top of their high school class (without paying attention to their standardized test scores). A 2004 Century Foundation study of the nation’s most selective 146 colleges and universities found that class-based affirmative action would produce almost as much racial and ethnic diversity as a directly race-based approach. And a 2010 study at the University of Colorado-Boulder found economic preferences, if properly structured, could actually produce more racial diversity.