Last Thursday, in a 4-3 opinion, the U.S. Supreme Court upheld the principle of affirmative action in college admissions. Here is Adam Liptak for the NY Times: “The decision, Fisher v. University of Texas… concerned an unusual program and contained a warning to other universities that not all affirmative action programs will pass constitutional muster. But the ruling’s basic message was that admissions officials may continue to consider race as one factor among many to ensure a diverse student body. The decision, by a 4-to-3 vote, was unexpected. Justice Anthony M. Kennedy, the author of the majority opinion, has long been skeptical of race-sensitive programs and had never before voted to uphold an affirmative action plan.” Justice Elena Kagan recused herself from this case.
Liptak explains Kennedy’s decision: “A university is in large part defined by those intangible ‘qualities which are incapable of objective measurement but which make for greatness… Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission.'”
The University of Texas already guarantees admission to the top ten percent of the graduates of each of the state’s public high schools, but Justice Kennedy explained that this an insufficient way to ensure that the university can achieve a diverse student body. The achievement of a college or university’s student body diversity has become the primary issue in all affirmative action cases because legal precedent has said that race itself and racial quotas may not be the sole deciding factors. Again Liptak quotes Justice Kennedy’s decision in which he called the Texas plan based on high school class rank insufficient to achieve real diversity: “An admissions policy that relies exclusively on class rank creates perverse incentives for applicants…and discourages students from taking challenging classes that might lower their grade point averages.”
In a commentary published on Saturday, Lee Bollinger, President of Columbia University, explains what he believes to be the significance of this case: “The Supreme Court’s decision this week in Fisher v. University of Texas, is a profound relief, and a cause for celebration among those of us in higher education who have long insisted that affirmative action is vital to our schools’ missions and to society as a whole… Yet, it’s worth remembering the limits of today’s affirmative action landscape even after Fisher. The court’s landmark 1978 decision in Regents of the University of California v. Bakke outlawed quotas but permitted the consideration of race to achieve a diverse student body; in doing so, it stifled deeper conversations in courtrooms and classrooms about why we need affirmative action and what it can achieve. And by severing the connection between affirmative action and our past, the court forfeited the opportunity to inform America’s conversation about racial discrimination with the awareness that comes only from understanding history.”
In other words, the legal precedent by which affirmative action must be justified today—achieving student body diversity at our colleges and universities—enables us to avoid speaking about what many believe to be the primary purpose of affirmative action—to act affirmatively to rectify a history of racial injustice. Bollinger continues: “(T)he most important task for universities in the months and years ahead is … to help society at large… better understand the painful and still-unresolved historical context within which the need for affirmative action exists. This context includes a public education system that remains nearly as segregated and unequal today as it was at the time of Brown more than six decades ago.”
Outside the courtroom, Supreme Court Justice Sonia Sotomayor has been forthright as she explains the importance of affirmative action in her own life. As a Puerto Rican student from the South Bronx—a student marginalized by society— she would have been unlikely to qualify for admission to the universities where she was admitted and at which she thrived academically: “I am a product of affirmative action,” she said. “I am the perfect affirmative action baby. I am Puerto Rican, born and raised in the South Bronx. My test scores were not comparable to my colleagues at Princeton and Yale.”