On Monday 24 June, the Supreme Court released its ruling on Fisher v. University of Texas, in which Caucasian applicant Abigail Fisher confronted the university’s policy of considering race as a factor in admissions. The Court’s 7-1 decision (Justice Elena Kagan recused herself) to send the case back to the appellate court for reconsideration shocked observers. Many had anticipated a 5-3 ruling and a dramatic weakening of affirmative action from the conservative-leaning Court. Onlookers were instead left with just as much uncertainty about the policy’s fate as before.
The Supreme Court explained its decision by claiming that the lower court did not hold the University of Texas to a “demanding burden of scrutiny.” Regents of the University of California v. Bakke (1978) and Grutter v. Bollinger (2003) had previously upheld affirmative action programs on the grounds that each university demonstrated that “such diversity is essential to its educational mission.” These cases set the precedent that affirmative action may not be defined as racial balancing with the goal of redressing past discrimination but rather as a necessary feature of a university for it to be capable of fulfilling its role of educating students. Reflecting this precedent in the Fisher majority opinion, Justice Anthony Kennedy ’58 wrote, “The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.”
Unfortunately, this decision does little more to answer the crucial question — should race be a criterion for any actions of a public institution, no matter their intention? The clear answer is “no.” Race-based preferences fundamentally oppose the 14th Amendment, which guarantees citizenship and the benefits of citizenship equally without regard to race, color or gender, and it is important to maintain this principle as the guideline for any actions of a public institution. In the final decision, Justices Clarence Thomas and Antonin Scalia both wrote separately in support of this idea. They explained that, had Fisher asked the Court to overturn the precedent, they would have overruled Grutter v. Bollinger and held that “a State’s use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause.”
The common defense for affirmative action considers racial preferences towards certain groups as different from racial preferences towards another. But they are not different — fundamentally, both history’s disenfranchisement of African Americans and today’s affirmative action programs equate to categorically unequal treatment based off of innate traits. In a PolicyMic article, Elaine Colligan argues that “minorities still aren’t equal to whites” in a number of key areas and that it is the role of the “government, and our judiciary, [to] interpret the Equal Protection Clause to fix the numerous societal problems that spawn out of inequality” through supporting practices such as affirmative action. In this claim, she ironically aims to combat the damages caused by racism and bias by implementing another form of racial preference. The suggestion that these programs are necessary to undo the wrongs of the past and their continuing effects is a grave double standard.
The key problem with this strategy, besides its blatant hypocrisy, is that it aims to achieve its goals while ignoring guiding principles set forth in the Constitution. The sad part is that this inconsistency compromises the goals themselves as well as those principles. When we allow a public institution to implement affirmative action in its admissions procedures, which is meant to be a tool to mend the inequalities brought about by racism, we are also giving it the power to impose further structural discrimination.
One way to think about this issue is to flip the characters in the story. If the University of Texas had the exact same policy – but this time favoring Caucasian applicants — there would be a massive uproar. We would go on and on about how the policy disenfranchised promising young minority students and how it promoted structural racism and even white supremacy. The basic argument would be that it violated the 14th Amendment by offering the benefits of citizenship at different levels, determined by the race of the citizen.
As ridiculous as this scenario sounds, it is a possibility under the precedent set by affirmative action. Yet affirmative action remains largely unquestioned, because at the moment it appears to work towards the goal of integrating minorities into higher educations. The authority to prefer minority students to Caucasians is fundamentally the same as the structural racism that we have worked so hard to combat. As Chief Justice John Roberts said, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” We cannot try to combat violations of our principles by applying the same ideas that produced those violations in the first place.
Devon Zuegel ’16