Newswise — A pending ruling in Fisher v. University of Texas at Austin before the Supreme Court may not only eliminate affirmative action in higher education, but could impact diversity among professions outside of higher education for years, a legal expert says.
Tanya Washington, a professor of law at Georgia State University’s College of Law in Atlanta, is available to discuss the case and its potential impacts. Her contact information is in the contact box above, visible to registered and logged-in Newswise users.
This particular case before the Court, referred to as “Fisher II” by many observers, stems 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.
After the case went through an appeals process, the Supreme Court heard the case the first time in 2012 – referred to by legal observers as “Fisher I” – and the university won after the Court remanded the case back to the Fifth Circuit Court of Appeals. Fisher appealed to the Court a second time, which took on the case and heard it in 2015.
The Court’s ruling in “Fisher II” is expected this month. The Court does not explicitly announce in advance which opinions will be handed down on specific dates.
“Unlike other decisions published this term, this one cannot be a 4-4 decision,” Washington explained. “Justice Kagan recused herself, and with the passing of Justice Scalia, it will probably be a 4-3 decision with Kennedy casting the tie-breaking vote. I am unclear why the Court granted certiorari in this case unless it is for the purpose of putting the final nail in affirmative action's coffin.”
“In Fisher I, decided just 2 years ago, Justice Kennedy gave with one hand and took with the other,” Washington continued. “He recognized racial diversity, which is one aspect of educational diversity, as a constitutionally compelling interest but narrowed the means by which universities can achieve it to those employed after all non-racial means have been exhausted.
“In other words, schools should pursue racial diversity without considering race,” she said. “Go figure.”
Washington sees only two possible outcomes from the case:
• Invalidating affirmative action by ruling that diversity is not a compelling interest, which would require that Justice Kennedy does an about-face from his position in Fisher I; or
• Recognizing diversity as a compelling interest but ruling that UT-Austin did not meet the exhaustion requirement (such as rendering a-racial affirmative action as the only constitutionally valid kind of affirmative action).
If the high court invalidates affirmative action programs altogether, the numbers of Black, Latino and Native American students at institutions of higher education will drop – meaning that there will be fewer professionals of color both inside and outside academia, Washington said, such as doctors, engineers, lawyers and other professionals whose training includes post-secondary education at a college or university.
“Either way, the fact that the Court decided to decide the case again does not bode well for affirmative action programs and policies,” she said.
Washington is the author of an article in the Harvard Journal on Racial and Ethnic Justice that goes into further detail about the issue. 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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