Newswise — For all of the initial joy some might have had when the U.S. Supreme Court handed down its decision in the Fisher v. University of Texas at Austin on June 23, 2016, it is by no means a total win for advocates of affirmative action policies -- and may actually make things less clear when it comes to such polices in college admissions, a legal scholar says.
Tanya Washington, professor of law at Georgia State University’s College of Law, researches issues related to educational equity, and issues arising at the intersection of domestic relations, race and children’s constitutional rights. Her contact information is available in the contact box above for registered, logged-in users of the Newswise system.
"I am relieved but not encouraged by the Supreme Court's decision in Fisher II and Associate Justice Anthony Kennedy's reductionist reasoning regarding the relevance of race," Washington said. "The Court's decision today is being celebrated because it could have been so much worse, not because it provides more secure constitutional footing for the use of race in admissions."
This particular case before the Court, referred to as “Fisher II,” stemmed from the denial of admission of Abigail Fisher, a white high-school senior, in 2007 to the University of Texas at Austin; she sued the university, arguing any use of race by the university in admissions decisions violated her rights.
Fisher initially lost in 2012 in a prior suit (“Fisher I”), and lost in this case, Fisher II, in a 4-3 decision that is not clear-cut, Washington said.
"It upholds the Court's decision in Grutter v. Bollinger acknowledging the educational relevance of racial diversity but it reduces the appropriate use of race as 'a factor of a factor of a factor,' and it permits the use of race only after institutions have endeavored to create racial diversity by race-neutral means," she said.
"By upholding the constitutional goal of using race to promote educational prerogatives but severely restricting the means of achieving that goal to those UT was uniquely positioned to employ, the decision upholding affirmative action may contain the seeds of its own undoing," Washington said.
Associate Justice Clarence Thomas wrote an opinion that called for a categorical prohibition on the use of admissions, and if he were still alive, the late Associate Justice Antonin Scalia would have certainly agreed, she explained.
"Notably absent were concurring opinions by Associate Justices Ruth Bader Ginsburg and Sonia Sotomayor calling for the use of race to respond to continuing and pervasive racial disparities and discrimination and the futility of the requirement that schools endeavor to achieve racial diversity by using race-neutral means," Washington said.
Washington is the author of an extensive article in the Harvard Journal on Racial and Ethnic Justice which highlights the problems of Kennedy’s opinion in Fisher I, now entrenched in the Fisher II ruling. For a copy, visit the Georgia State College of Law’s online reading room at http://readingroom.law.gsu.edu/faculty_pub/2025/.
For more about Washington, visit http://law.gsu.edu/profile/tanya-monique-washington/.
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