Fisher is a Significant Loss for Opponents of Affirmative Action Preferences

Sure, the Court tightened the official standards for preferences. But judging from past experience, unless otherwise compelled by state officials in a few conservative states, university officials will ignore Fisher to the extent it conflicts with their current practices. The only way Fisher can then be enforced is through lawsuits over university policies, which are few and far between.

Stuart Taylor gives some reasons why:
(1) Very few white or Asian students who suspect that they were rejected on account of racial preferences are motivated to bring lawsuits. The vast majority would rather get on with their lives. Suing has opened white plaintiffs such as Abby Fisher to hostile publicity and even vilification. Fisher was also opposed in the Supreme Court by a very wide array of major establishment institutions; (2) It is extremely difficult for a rejected student to know, let alone prove, that she would have been admitted but for racial preferences. While aggregate data suggest that many or most universities give black applicants a boost over whites equivalent to a full point of GPA, or 300 SAT points, and a larger boost over Asians, almost all universities cloak in secrecy how much weight they give to race; (3) Another deterrent to suing is the endless delay that is routine in major litigation. Abigail Fisher had long since graduated from Louisiana State University by the time the Supreme Court got around to deciding her case — by sending it back to the lower courts for more litigation! (4) Such lawsuits are very expensive, and far beyond the means of almost all rejected applicants. While Fisher’s lawsuit has been financed by conservative activists led by Edward Blum, they could provide only a tiny fraction of the resources that any university can throw into the fray.

I also recall reading an article back in the late 80s in either Time or Newsweek about discrimination in admission against Asians at University of California schools. The reporter discovered that the reason there had been no lawsuits against UC was that any Asian applicant with very high test scores who seriously threatened a lawsuit (say, the applicant’s father was an attorney) was quietly admitted on “reconsideration.” I’d be surprised if the same thing doesn’t go on today. Taylor notes that by the time another case gets to the Supreme Court, the Court may well be much less sympathetic to the plaintiffs.

Given all this, which is reasonably obvious to the informed observer, it’s hard to understand why Bert Rein, arguing for Fisher before the Court, completely disclaimed any desire to overrule Grutter, thereby giving Kennedy an easy out.