Affirmative Action, the Fisher Case, and the Supreme Court: What the Justices and the Public Need to Know, by John Aubrey Douglass

Once again, the U.S. Supreme Court will decide on the contentious issue of Affirmative Action, and specifically the use of race in admissions decisions in public universities. Despite differences in the details, seasoned veterans of affirmative action debates are experiencing déjà vu. In this case, Abigail Noel Fisher claims overt racial discrimination when the highly selective University of Texas at Austin (UT) rejected her freshman application in 2008. The Court’s ruling could range from upholding the legal precedent of allowing race to be one of many factors in admissions; to a more narrow decision that rejects UT’s particular use of race, but sets new limits on such decisions; to an outright rejection of using race in any form as one among many factors universities currently use in admissions. In this paper, I discuss the case and present a number of themes that should be considered by the Court and by the public, including problems with the notion of a “critical mass” of minority students; that arguments regarding academic merit are complex and nuanced; and that among highly selective public universities, where demand from many qualified students far exceeds the supply of admissions spots, admissions policies have arbitrary outcomes despite the best efforts to create rational and explainable admissions policies. As much as anything, the Fisher case is about the appropriate locus of admissions policy and decisions. The historical precedent, as reiterated by Justice Sandra Day O’Conner in the 2003 Grutter case, is that judgments related to the question of admissions, including the idea of sufficient critical mass of underrepresented students and factors that indicate future academic success, are, in the end, judgments that should remain within the Academy and which the courts should not infringe on without a compelling need to do so. There is no compelling need in the Fisher case. Simply agreeing to hear the case seems to indicate a willingness by the Court to overrule past precedent. Yet there is also a possibility that the Court’s decision will be influenced by the prospect that a ruling against affirmative action will, for the first time, have meaning for selective private institutions, which have largely avoided scrutiny of their admissions practices and biases. As all of the justices are products of eastern elite private institutions, this could be an important consideration, although speculative.