“A Long Slow Drift from Racial Justice” — The Hidden Perils of the Fisher Ruling

Last week two decisions from the Supreme Court seemed to turn the clock back on the delicate framework of Civil Rights constructed in the John F. Kennedy and Lyndon B. Johnson eras, in what the former president of the University of Michigan and Columbia University, Lee Bollinger, called “a long slow drift from racial justice.” The high court’s decisions in Shelby County, Alabama v. Holder and Fisher v. the University of Texas, while appearing to give credence to the principles of racial justice, severely eroded the means to attain voting and educational access.

The Shelby Country decision nullified Section 4 of the Voting Rights Act, while maintaining Section 5. Section 4 required nine states and some counties to obtain preclearance from the Department of Justice prior to changing voting requirements. Although based on a formula last updated in 1975, most observers believe that a bipartisan Congress will not coalesce in passing an updated formula. Chief Justice John Roberts justified the decision by stating that “things have changed dramatically” in the South and this country. Within 48 hours of the law passing, Texas, one of the states formerly covered under Section 4, moved to strengthen its requirements for voter identification and indicated that redistricting maps would no longer require federal approval. Comedian Bill Maher aptly termed the Voting Rights decision as evidence of Racism 2.0, in the evolution of more subtle and carefully constructed forms of exclusion. The Fisher decision, in turn, set an almost impossibly high bar for the use of race in college and university admissions that will likely result in unparalleled levels of litigation.

In the Fisher case, Abigail Fisher, a white undergraduate denied admission to the University of Texas claimed that her race prevented her admission to the university while less qualified minority students were admitted. The Supreme Court returned the case to the Fifth Circuit, asking the district/appellate Court to re-review the case with “strict scrutiny” of the inclusion of race in holistic review at the University of Texas. Although some affirmative action advocates viewed the outcome of the ruling as positive in that the justices recognized the value of diversity in the higher education experience, the decision now makes it extremely difficult for universities and colleges to consider race even as one factor among many in a holistic review of admissions applications. Ordinary Americans, as Lee Bollinger observed, will not pick up on the decoupling of race-conscious college admissions and “the larger project of social justice” amidst the legal maneuvering and minutiae.

The Fisher decision essentially brought the courts into the university and college admissions process by requiring a reviewing court to determine if a university’s use of race is necessary to achieve the educational benefits of diversity. Further, “the reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce” these benefits (Fisher v. University of Texas at Austin et al., June 24, 2013, p. 2). Writing for the majority, Justice Kennedy, declared that in this process, “the university receives no deference.” Kennedy explained further that the courts, not university administrators, must determine that the means chosen to attain diversity are “specifically and narrowly framed to accomplish that purpose.”

As noted by Peter Schmidt in the Chronicle of Higher Education, the decision has led representatives of Pacific Legal Foundation and the Southeastern Legal Foundation, public-interest law firms that have brought litigation against affirmative action programs, to indicate that they look forward to representing individuals who wish to challenge university and college admissions policies. It remains unclear is how the courts can possibly handle challenges to admissions policies that might arise in the more than 4000 institutions throughout the United States.

Commentators indicate that universities and colleges will need to ramp up their efforts at data collection to meet the requirements of the Fisher decision and to prove that race-neutral efforts could not have attained the same level of racial diversity. Given the constraints of the Fisher decision and its aggressive intrusion in the realm of university governance, it will require significant efforts on the part of colleges and universities to find the appropriate channels to continue to enhance the access and success of minority students to educational opportunity.