The Supreme Court’s Fisher decision is a hollow victory for affirmative action.

Affirmative Action Won a Big Battle at SCOTUS, but the War on Resegregration May Already Be Lost

Affirmative Action Won a Big Battle at SCOTUS, but the War on Resegregration May Already Be Lost

The law, lawyers, and the court.
June 27 2016 1:08 PM

Diversity Is Not Equity

The Supreme Court’s Fisher decision is a victory for affirmative action. But has the war on resegregation already been lost?

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The University of Texas campus in Austin is pictured on Wednesday. The U.S. Supreme Court on Thursday upheld the University of Texas’ admissions practices.

Jon Herskovitz/Reuters

There are a lot of reasons to celebrate the Supreme Court’s decision in Fisher vs. University of Texas II and the seemingly dogged persistence of affirmative action in higher education. The decision may slow the three decade–long attack, advanced both at the ballot box and in the courts, on one of the most important policy tools to achieve racial equity. Since 1978, the Supreme Court has continually reaffirmed the educational benefits of diversity, and Fisher II signals loudly and clearly that this so-called diversity rationale will stand. As the nation continues to transform demographically and culturally, the importance of affirmative action cannot be overstated.

Those celebrating the decision should include white women, like Abigail Fisher and former Supreme Court anti­–affirmative action plaintiffs like Barbara Grutter and Jennifer Gratz. White women have been the biggest beneficiaries of affirmative action. In 1960, male college graduates outnumbered females by 60 percent. Those numbers have now reversed. Affirmative action has helped white women close the income gap with white men.

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Also among those celebrating should be Asian Americans, like those from the conservative-leaning Asian American Coalition for Education, a group of East Asian and South Asian American organizations that has filed federal complaints against Harvard alleging that affirmative action discriminates against them as well as an amici curiae brief supporting Fisher. Asian Americans, whom polls consistently show actually support affirmative action by more than 2 to 1, have not yet broken through the bamboo ceiling in all but a few fields.

Indeed, Justice Samuel Alito’s passionate, scattershot, and often barely coherent dissent takes note of many ways in which the University of Texas fails Asian American students who remain underrepresented in many classrooms, acting “almost as if Asian American students do not exist.” If Alito really cared about the success of Asian Americans, he too might be cheered that his colleagues have bolstered race-conscious policies that might address discrimination. Through the 1990s, affirmative action and equal opportunity programs at many universities included underrepresented Asian American ethnicities, such as Filipino and Vietnamese Americans. Even now, some of the most economically disadvantaged Asian American students benefit from racial consideration in the admissions process. But conservatives only seem concerned with discrimination against Asian Americans when it serves the ideology of colorblindness and allegations of discrimination against whites.  

The Supreme Court victory is bittersweet at best, however. Fisher and the Asian American Coalition for Education have argued that because the Constitution is “colorblind”—an interpretation challenged by justices from Thurgood Marshall to Ruth Bader Ginsburg—any consideration of race is unconstitutional. In particular, Fisher sued to overturn the University Texas’s use of race in its “holistic review”—a process that included race as a “factor of a factor of a factor” in a “Personal Achievement Index” score alongside others such as the applicant’s socioeconomic status and family responsibilities. However, about 75 percent of Fisher’s class was admitted under another process: the Ten Percent Plan passed by the Texas Legislature, mandating admission to the University of Texas of any high-schooler graduating in the Top 10 percent of his or her class.

Abigail Fisher was evaluated for admission under holistic review because her grades were insufficient to admit her under the Ten Percent Plan. Only about a quarter of the class was admitted under the holistic review process Fisher sought to attack. And that’s where the case fell apart.

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In writing for the majority, Justice Anthony Kennedy cited an amici curiae brief filed by the pro–affirmative action Asian American Legal Defense and Education Fund arguing that there was no evidence the University of Texas admissions plan discriminated against Asian Americans. Instead, the brief pointed out that whites and Asian Americans could actually benefit from the University of Texas’ consideration of race. For example, a low-income Southeast Asian or rural white applicant might invite extra consideration if she added to the diversity of the class. Justice Kennedy remarked on the irony in his opinion: “It seems quite plausible, then, to think that petitioner would have had a better chance of being admitted to the University if the school used race-conscious holistic review to select its entire incoming class.”

Yet this same argument, which for now helps preserve what is left of affirmative action in higher education, also clearly illustrates how far this program—established originally to remedy racial segregation, discrimination, and inequity—has fallen in the post–civil rights era. The court allows consideration of race in ways that benefit whites and Asian Americans but applies the strict scrutiny standard to any affirmative action programs meant to explicitly remedy racial underrepresentation of Blacks, Latinos, and American Indians.

As a result, universities have had to come up with increasingly arcane solutions. And these solutions are where we begin to see the tragic impact of the campaign to end affirmative action. The real issue at stake, given the demographic and cultural shifts that will make this country majority nonwhite in just one more generation, is resegregation. From elementary school to higher education, segregation has only intensified over the past quarter century. Fisher II shows how we let that happen.

It has now been more than a half-century since President Lyndon B. Johnson’s commencement speech at Howard University in which he famously said, “It is not enough just to open the gates of opportunity. All our citizens must have the ability to walk through those gates.” Federal use of the words “affirmative” and “action” date back to New Deal labor policies meant to protect, achieve, or restore equity to any group of persons suffering from inequality and discrimination. The civil rights movement helped Americans see that historical underrepresentation of people of color was not accidental; it was the product of racism. And so by the end of the 1960s, affirmative action programs began to more explicitly address racial segregation and discrimination. In particular, college admissions policies designed to admit black Americans and other minority groups to elite universities finally ended the de facto exclusion of students of color.

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Affirmative action came out of a broad national consensus to undo racial segregation. We reached peak desegregation in public elementary and secondary schools in 1989. But by then the Supreme Court had already begun marching the country back toward segregation at all levels of education.

In 1978, the Bakke decision introduced the notion of “diversity” as a competing rationale for affirmative action to “equity.” Prior to this decision, the debate over affirmative action was a forum on race and inequality. At the time, the New York Times editorial board even published an influential pro–affirmative action op-ed under the title, “Reparation, American Style.”

But after Bakke, equity and diversity were decoupled. In the controlling opinion, Justice Lewis Powell Jr. argued that while consideration of race demanded the strictest scrutiny, achieving “diversity” was an acceptable reason to include underrepresented minorities. Citing Harvard’s admissions process, he argued that it was good for those students—clearly mostly upper-class white men—to be able to sit in classrooms and learn with and from “Californians or Louisianans but also Blacks and Chicanos and other minority students.”

In this way, Justice Powell profoundly changed the way we talk about race in America. Equity had been about ending segregation and oppression. Diversity could be about little more than novelty and optics. The judicial history of affirmative action since Bakke has largely resembled a slow-motion burial of the equity rationale. And so the discourse has increasingly narrowed—from big questions like the role of education in promoting opportunity and the social good toward increasingly technocratic arguments about the ways in which “diversity” measures can include any kind of consideration of race.

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In 1979, just after the Bakke case was decided, 67 percent of whites supported affirmative action. But Powell had opened the door for opponents to attack the program as one that was stealing seats from meritorious whites. Since then, organized efforts to undo civil rights desegregation orders and consent decrees at the elementary and secondary school level have accompanied efforts to end affirmative action.

Both the zero-sum focus of affirmative action opponents and the technocratic challenges to the arcane systems of admissions policies have narrowed the debate from one about opportunity and equity for all into one that centers on a small number of elite schools and favors claims of victimhood.

The Fisher II case turned, in large part, on the court’s recognition of the University of Texas’s care in trying to satisfy all the accreted standards and rules. In defending its process, the university gave us glimpses of the impact that limits on affirmative action have had on their student body. They showed that black enrollment in the flagship school of this majority-minority state had plateaued at a mere 4 percent of the class. (Twelve percent of Texans are black.) More than half of classes had no black Americans enrolled, and only 1 in 5 had two or more enrolled. These are system failures—on the admissions end and on the classroom end.

The reality is that case law has forced university admissions officers in the eight states that have banned affirmative action to find proxies for race. Most of these proxies have proven inadequate to make up for underrepresentation. The central innovation of the Ten Percent Plan was that they treated the best students from underfunded inner-city or inner-suburban high schools equally with the best students from the well-funded exurban ones. If the top 10 percent plans were useful in restoring diversity to state universities in Texas, California, and Florida, it was because of secondary school segregation. What could be a more perfect proxy for racial disparity than another measure of racial disparity?

Because school segregation tracks closely to economic inequality, the top 10 percent plans account for disparities in class, as well as race. But they do so with an “OK, we give up” kind of cynicism. As Justice Ginsburg wrote in her dissent to an earlier affirmative action case, Gratz v. Bollinger, such plans “create perverse incentives. They encourage parents to keep their children in low-performing segregated schools, and discourage students from taking challenging classes that might lower their grade point averages.”

Thanks to decades of efforts to undo civil rights era policies and orders, we are now in the strange place of celebrating a Supreme Court decision that affirms a desegregation policy that depends upon resegregation to succeed. But must we accept resegregation as the price of diversity? The only way to escape the tragedy of this victory is to find a new national consensus to attack segregation at all levels of education. The alternative is a society in danger of being swallowed by its widening racial and class divisions.