Fisher v. Texas and the Future of Affirmative Action

My contribution to Scotusblog’s symposium on Fisher v. Texas can be found here. An excerpt follows.

Public debate over affirmative action revolves almost entirely around the issue of preferences for African Americans. This is not surprising, given that affirmative action was initiated in the 1960s to serve the “compensatory justice” rationale of redressing historical oppression of African Americans, counteracting generalized discrimination against them, ensuring the existence of African-American role models, and the like.

In the 1978 Bakke case, however, Justice Lewis Powell rejected the idea that racial preferences by state universities are constitutionally permissible on compensatory justice grounds. Rather, he claimed that such preferences were lawful only if used to promote “diversity” among the student body, a rationale reiterated by Justice Sandra Day O’Connor for a five-to-four majority in the 2003 Grutter case….

Nevertheless, and despite the fact that African Americans are a shrinking minority of those eligible for affirmative action preferences, the underlying ideological justification for affirmative action preferences, especially on university campuses, remains to redress past and present discrimination against African Americans. (And, to put my own cards on the table, like most academics I find this rationale much more persuasive than I find the diversity rationale. Few law professors, at least, really think that the primary justification for university affirmative action programs is that they make campus life more interesting for white students.)…

Fisher disrupts the debate over the constitutionality of affirmative action because it represents the first affirmative action case to reach the Supreme Court in which (a) there is no plausible case that racial and ethnic preferences are necessary to achieve “diversity” [because Texas's matriculants were about 40% "minority" without racial preferences]; and (b) those most affected by the affirmative action preferences at issue are not blacks and whites, but Hispanics and Asians.

….

Fisher represents the first racial preferences case to come before the Supreme Court in which African Americans are not the primary intended beneficiaries, and whites are not the only, or even the primary, group who will be put at an official disadvantage by university policies.

Texas has argued that it should be able to engage in preferences to bring the demographics of its undergraduate class closer to the demographics of the state. Under that standard, while African Americans and Hispanics were “underrepresented” under Texas’s race-neutral admissions policies, Asian Americans were and remain wildly overrepresented. Asian Americans constitute only 3.5% of the Texas population, but are about five times that percentage of undergraduate students at UT-Austin.

As a result of the university’s attempts at racial and ethnic balancing, among enrolled students who have been admitted under race-conscious criteria Asian Americans have not only needed significantly higher SATs and GPAs than have Hispanics and African Americans, but have also needed higher scores than whites.

As the Hispanic and Asian populations of Texas continue to grow, assuming Asian Americans continue to outperform other groups academically, the only way for UT-Austin to achieve a “balanced” class will be to favor the former at the expense of the latter….

So, unlike every race/ethnic affirmative action case to reach the Supreme Court, where the underlying conflict has been primarily black‑white, Fisher represents the affirmative action of the future, where Hispanic Americans, the largest government‑defined minority group in the country, are the primary beneficiaries, and another large and growing group, Asian Americans, suffer the most harm.

….

In short, despite all the diversity talk necessitated by Supreme Court precedent, the primary underlying justification for affirmative action preferences has always been the felt need to redress the exclusion of African Americans from mainstream American life through hundreds of years of slavery, Jim Crow, and discrimination. UT policy, by contrast, while also favoring African-American applicants, primarily pits ones group composed mostly of post‑1965 immigrants and their children against another, with no apparent justification beyond the blunt political fact that Hispanics are a much larger voting constituency in Texas…. In the long run, the only way to save affirmative action preferences may be to limit them to their original primary intended beneficiaries, African-American descendants of American slaves.