For the last several years, supporters of affirmative action have awoken every day justifiably fearing that the courts would bring race-conscious university admissions policies to a swift end. The 2006 appointment of Justice Samuel Alito gave conservatives a solid majority on the Supreme Court, and Justice Anthony Kennedy, the closest thing the Court has to a swing voter on issues of race, has not historically been sympathetic to affirmative action.Background: The plaintiff in this case, Abigail Fisher, had applied to the University of Texas back in 2008 and was denied admission, which - given the fact that, according to most news reports, she was a mediocre student at best - should've ended the case right there...unfortunately, Fisher, who is white, decided to sue the university system on the grounds of discrimination, arguing that Texas's admissions program was in violation of the 14th Amendment's Equal Protection Clause.
Fisher v. University of Texas at Austin, which the Supreme Court decided on Thursday, was the vehicle opponents of affirmative action chose in order to kill the programs. And, as this case proceeded through one of the most conservative federal appeals courts in the country and then, to two separate trips to the Supreme Court, it looked likely that affirmative action was on its death bed. Worse, for defenders of race-conscious programs, Justice Elena Kagan was recused from Fisher, so Justice Antonin Scalia’s recent death appeared unlikely to change the outcome in this case.
At yet, affirmative action will survive. As ThinkProgress quipped shortly after the second round of Supreme Court oral arguments in Fisher, Justice Kennedy spent the entirety of this litigation playing the role of the Dread Pirate Roberts from Rob Reiner’s classic film The Princess Bride. In that film, the Dread Pirate keeps a captive alive, telling him each night that “I’ll most likely kill you in the morning.” Yet in the end, the pirate does not kill his captive, instead turning over his ship and his title to the new Dread Pirate.
As it was in the movies, so it was Thursday in the Supreme Court — sort of. Though Kennedy appeared likely to kill affirmative action at many turns throughout this case, he cast the key fourth vote to uphold it over the dissents of his three most conservative colleagues. But, while Fisher is a victory for affirmative action, it is only a partial one. Kennedy’s opinion makes it clear that universities have a high and ongoing burden if they want to maintain affirmative action programs. It could also potentially inspire a rash of harassment suits targeting these programs. (Think Progress)
Now, Texas's admissions program for UT-Austin (a/k/a the University of Texas) is a two-step process...first, the university allows any student across the state of Texas who graduates in the Top 10% of their high school graduating class (the state's Top-10 rule) admission to the university irrespective of race. Afterward, any open positions remaining in each year's freshman class are filled according to UT-Austin's pre-Top 10 admissions policy, which - among other things - takes in race as one of several factors.
The crux of the case wasn't with the Top-10 part of the university's admissions policy but with the other part of it, where race does play a factor (the reason it doesn't in regards to the former is because that rule, as extablished by Texas law, applies across-the-board irrespective of race). Now, I have no problem with race being used as a factor in admissions so long as it doesn't go against the Court's Bakke decision, which is at present the gold standard for how race should be used as a factor (i.e. not as the prevailing factor in admissions but as one of multiple factors in the admissions process).
So, why was this case important? Had Fisher won here, it would've wreaked havoc on admissions policies across the country as supporters of the plaintiff here could've used it as a cudgel to hammer back at not only the Bakke decision but on the whole idea of equal protection under the law; in addition, as I intimated earlier, Abigail Fisher is no Allan Bakke; unlike Bakke, who was a stellar student by all accounts denied entry based on race, Fisher was, at best, a 3.5 GPA student who tried to get in simply because she was white and got into fit of pique over the fact that, in this case, the university rightfully did the correct thing and didn't admit her.
That said, the issue of whether race should be a factor in university admissions isn't over by any means; from what I've read, the plaintiffs' attorneys have said that they intend to seek out other students around the country affected by similar policies...all I can say here is - besides good luck - is that before you try to use the 14th Amdt. as a cudgel against these policies, pick a better student to attempt the effort with.