Is Affirmative Action Fighting for Its Life?


Two weeks ago, the United States Supreme Court decided on the Abigail Fisher v. The University of Texas at Austin case, and it shocked many of us watching. Actually, “decided” is, perhaps, an inaccurate term. Rather than making a decision that the use of race in the University of Texas’s diversity-initiative based admissions policy is justified or not justified, the Supreme Court punted the case back down to the lower courts, arguing that the lower courts did not sufficiently analyze the case against an earlier decided case, Grutter v. Bollinger.

The decision reads, “Because the Fifth circuit did not hold the University to the demanding burden of strict scrutiny articulated in Grutter and the Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, its decision affirming the District Court’s grant of summary judgement to the University was incorrect. Pp. 5-13.”

All of this was murky for me and so, I decided to call a good friend, Dr. Sekou Franklin, Civil Rights and Voting Rights activist, community activist, and Associate Professor of Political Science.

Da Hype 1: Thanks for speaking with me on this topic, Dr. Franklin. I know the Voting Rights case more specifically addresses your area of expertise, but I am curious to know your thoughts on Fisher v. The University of Texas and the Supreme Court’s decision to punt it back down to the lower courts.

Dr. Sekou Franklin: Basically, Fisher v. the University of Texas at Austin is the third major Supreme Court decision that deals specifically with Affirmative Action in higher education. The first two were in 2003 and the Supreme Court combined the cases, so people often speak of them as one case: the Grutter case from the University of Michigan.

A little background: The University of Texas has an admissions policy where they typically accept students across the board of research standards. Then, they reserve a few spots [for students] where they take race in consideration, along with other factors. The Fisher case was actually brought by a young woman whose attorney has a history litigating cases that are against Voters’ Rights. That is the connection between the [two cases]. There is a famous redistricting case in the mid-nineties that effectively attacked what’s called majority-minority districts, or districts that are drawn to fairly represent African Americans called Bush v. Vera. And, that attorney essentially has strong linkages to that case and he also has a strong linkage to the Shelby County [Voters’ Rights] case.

Da Hype 1: I did not know that. So, he was invested in both the Fisher case and the Voting Rights case?

Dr. Franklin: Yes, he was invested in them both. And, he will probably be the major link between other cases that try to eliminate diversity-based programs.

So, the Supreme Court remanded the Fisher case back to the lower courts, and in doing that, they confirmed that race in admissions is an important consideration. This is the same statement made in the 2003 Grutter case that I mentioned earlier, and in the Bakke case in 1978. In all of these cases–the Fisher case, the Grutter case, and the Bakke case–the Supreme Court effectively said that diversity-based programs, or what we call Affirmative Action are all important factors. However, and the big “however” as it is related to the Fisher case, is that the lower courts, when accepting that diversity is an important factor, must offer a really good rationale (what is called a strict standard) or reason for using race in an admissions process.

I see the court case as a double-edged sword: Given that it is a conservative court, [and] until we can mobilize in a more effective way, it might be the best option that we can hope for.  It still allows for some mobilization in support of Affirmative Action that can take place because it’s going to come back again, more or less.

The most damaging part [of this decision] is, from my perspective, Clarence Thomas’ opinion, because he likened Affirmative Action to slavery and used words like “racial engineering.” I think that is the most damaging part of the decision.balance

Da Hype 1: What was most astonishing to me about the Fisher case is that it ever made it to the Supreme Court in the first place. From my understanding, Abigail Fisher was not that strong of a student and that was why I was surprised that it made it all the way to the Supreme Court. What are your thoughts on that?

Dr. Franklin: Even in the Bakke case in 1978, he wasn’t that great of a student. They don’t involve the best students, they just involve someone who has a really strong financial backing.

Overall, I think the decision is not good for Civil Rights, but I don’t think it is catastrophic because the courts are so conservative and it can bide some time, particularly for young people to try to mobilize behind diversity–based programs.

*Editor’s Note: This is Part I of a two Part discussion. Please come back next week to read about what Dr. Franklin has to say about the Voters’ Right decision.


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