“Becky” referred to Abigail Fisher, a marginal-at-best white applicant to the University of Texas who did not gain admission and then spend the next several years challenging the school’s affirmative action policy in court.
Court watchers widely expected the Supreme Court, with conservative Justice Anthony Kennedy holding the swing vote, to side with Fisher. Instead, Kennedy wrote a much more nuanced opinion that allowed the university to continue its limited use of race in admissions decisions.
Just over a year after Fisher v. University of Texas at Austin, however, the fate of affirmative action looks much less secure. Jeff Sessions, who was denied a federal judgeship in the 1980s due to concerns that he is too racist, now runs the Justice Department. And the New York Times reports that “the Trump administration is preparing to redirect resources of the Justice Department’s civil rights division toward investigating and suing universities over affirmative action admissions policies deemed to discriminate against white applicants.”
Now, that victory for affirmative action in Fisher looks a whole lot less like a victory. If anything, Fisher offers a road map that affirmative action’s opponents can use to harass universities into submission.
The road map to block affirmative action
Even before Fisher’s bad grades kept her out of the University of Texas, affirmative action stood on precarious ground. In 2003’s Grutter v. Bollinger, the Court upheld the University of Michigan law school’s affirmative action program, explaining that diversity on campus benefits all students, regardless of race. “The skills needed in today’s increasingly global marketplace,” Justice Sandra Day O’Connor wrote for the Court, “can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints.”
But Grutter was a 5–4 decision, and O’Connor left the Court less than three years later to be replaced by the arch-conservative Justice Samuel Alito. Affirmative action appeared to be on borrowed time.
Thanks to Fisher, considering race as a factor in admissions is still technically permitted — but the decision laid out a road map for blocking the policy by ensuring that many affirmative action programs are worn down by attrition.
The Texas affirmative action program at issue in Fisher was extraordinarily modest. About three-quarters of the university’s students were admitted based solely on their high school class rank. Of the remaining quarter, race was one of a myriad of factors that could give an applicant a small advantage in the admissions process.
Kennedy’s Fisher opinion upheld this modest program, but it did so with several caveats. “Race may not be considered [by a university], Kennedy wrote, “unless the admissions process can withstand” the highest level of constitutional scrutiny. Specifically, that means that “through regular evaluation of data and consideration of student experience, the University must tailor its approach in light of changing circumstances, ensuring that race plays no greater role than is necessary to meet its compelling interest.”
Thus, an admissions policy that is upheld today may still fail a new review tomorrow.
Kennedy’s opinion also emphasizes just how many hoops Texas had to jump through to produce an acceptable plan. The university “conducted ‘months of study and deliberation, including retreats, interviews, [and] review of data.’” That resulted in a proposal that “was written following a year-long study.”
Public universities wishing to implement affirmative action programs, in other words, must undergo a long and costly process to do so. They must regularly reevaluate their existing program, and they can be sued by conservative activists. And even if a university’s program is upheld by the courts, that doesn’t prevent a new set of activists from challenging the program again the next day.
A bizarro Justice Department
One saving grace for universities is the fact that wearing down a policy you don’t like through a series of lawsuits is expensive. The sort of activists who challenge affirmative action in court do not have unlimited resources. Even after the precedent set by Fisher, many university admissions plans were likely to skate by unchallenged.
But now the Justice Department is threatening to bring the full weight of the United States government down on universities that seek to diversify their campus. They are threatening to turn the department’s Civil Rights Division into a bizarro version of itself.
One of the primary obstacles to desegregation in the years following Brown v. Board of Education was that, when school districts refused to comply with Brown, a private party had to file a suit seeking an integration order. In no small part due to white supremacist terrorism against civil rights workers, the only organization that consistently sought out opportunities to file such suits was Thurgood Marshall’s NAACP Legal Defense Fund, and LDF could only do but so many things at once.
This problem was solved when the Civil Rights Act of 1964 enabled the Justice Department to file desegregation suits in the name of the United States government, thus bringing the full resources of the Justice Department to bear against segregated schools.
Now, however, Sessions’ Justice Department wishes to use this awesome power to fight integration.