Richard Thompson Ford, Vox, July 5, 2016
The majority opinion in Fisher v. Texas, which upheld the affirmative action policy of the University of Texas, marks a turning point in the long controversy surrounding race-conscious admissions policies and perhaps an important shift in the orientation of the Supreme Court as well.
It may seem at first that this marks an ideological shift to the left. But Fisher is more likely a long overdue recognition by the Court of the limits its own competence. In a move that infuriated the minority, the Court elected to leave calculations about the educational benefits of diversity to educators.
A happy side effect, whether intentional or not, is that the Court may have taken a step toward improving the candor and quality of debates about racial injustice–discussions it previously played a part in undermining.
Basically, the question in Fisher boiled down to: How much diversity is enough? The Court’s answer was that only UT itself could make that call. “Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission,” Justice Kennedy wrote.
This is a big change in the Court’s approach to affirmative action in higher education. From the late 1970s until this case, the Supreme Court placed new restrictions on affirmative action after each new challenge, basically micromanaging college admissions from the bench. In 1978’s Regents of the University of California v. Bakke,the Court held–in a regrettable move–that affirmative action was the equivalent of Jim Crow race discrimination. According to the Court, remedies that specifically helped black and Hispanic students (at the expense of other students) were not legally and morally different from rules that excluded minority-race students.
To survive the Court’s scrutiny, affirmative action had to be “narrowly tailored” to serve a “compelling” interest. Under the compelling interest standard, the Court effectively rejected affirmative action designed to remedy societal discrimination as too vaguely justified.
With the “diversity” rationale, the Court painted itself into a corner
As a result, the only permissible goal of affirmative action became “diversity,” which the Court agreed brought substantial educational benefits (including teaching students to live and work with people unlike themselves). Under the requirement of narrow tailoring, the Court effectively limited consideration of race to one factor in a “holistic” evaluation of individual applicants, alongside qualities like musical talent or socioeconomic background. In short, it barred any systematic form of race-conscious admissions.
What’s more, in the 2013 Fisher case, of which this year’s case is the final chapter, the Court insisted that universities use even this weakened version of affirmative action only when race-neutral alternatives proved unable to achieve diversity.
The Court changed the way we talk about race–for the worse
These restrictions did much more than just limit affirmative action. By limiting the permissible rationales for affirmative action, they have reshaped the conversation surrounding racial justice. For instance, in response to Bakke, many selective universities shifted from straightforward numerical approaches to admission to the more opaque “holistic review” of individual applicants.
While there’s no doubt that selective schools care about diversity, it’s far from clear that colleges stopped thinking of themselves as engaged in remedial racial justice too. The practice–and the required vocabulary for public discussion–simply became weaker and more indirect.
Because affirmative action is one of the nation’s few proactive responses to racial inequity, the way we think and talk about it affects the way we think about racial justice generally. And because universities are dedicated to sustained and rigorous analysis of vexing social issues, the conversation there is especially influential. Practically speaking, the Court’s affirmative action jurisprudence has warped the national conversation about race, downplaying the importance of race-based disadvantage and exaggerating the importance of cultural difference.