The Supreme Court, Affirmative Action, and the Current Review: An Overview of What’s Being Proposed, Discussed, and Considered

When Abigail Fisher applied to the University of Texas in 2008, she had high hopes that she would be admitted to the college. Fisher had good reason to be hopeful of an acceptance: she received good grades, was active in extracurricular activities, and was generally a model student. Unfortunately, however, Fisher’s hopes were dashed when she received a denial from the competitive school—a denial, she has claimed, that is based solely on her race, not her academic or extracurricular achievements. In the present day, stories of racial discrimination are nothing new in the United States. This case, however, is different: Abigail Fisher is caucasian.

According to Fisher and her lawyers, the University of Texas violated the 14th Amendment’s equal protection clause. For their part, the school responded by stating that occasionally they do consider an applicant’s race, but in a very limited context. According to the Legal Information Institute, this happens in the admissions process through the University of Texas’ Personal Achievement Index, but “race has no bearing on admissions decisions if the applicant’s academic performance and essays are sufficiently strong or prohibitively weak.”

The Wex Legal Dictionary defines affirmative action, which emerged in the United States during the 1960s, as “a set of procedures designed to eliminate unlawful discrimination between applicants, remedy the results of such prior discrimination, and prevent such discrimination in the future.” Fisher’s case against the University of Texas quickly grabbed the public’s attention and raised a seemingly important question in the minds of many Americans: Where does affirmative action stand in the 21st century?

Origins of affirmative action

Questions of fairness, racial discrimination, and equal opportunity have been a topic of discussion since the abolition of slavery in the 19th century, but it wasn’t until the mid-20th century that the concept of affirmative action began to gain some traction. Acknowledging the oppressive effects of racial discrimination, President Kennedy signed an executive order in 1961 requiring government contractors to ignore racial bias in their hiring processes. Four years later, President Johnson signed his own executive order which expanded on that idea, including increasing the amount of minority workers.

In 1978, the issue of affirmative action in education came before the Supreme Court in Regents of the University of California v. Bakke. In this case, the plaintiff, Allan Bakke, claimed that his denial of acceptance to the University of California Davis’ medical school was the result of racial discrimination (Bakke is white) by the school, who favored minority candidates in order to meet affirmative action quotas. Like Abigail Fisher in 2008, Bakke and his lawyers claimed the practice was a violation of the 14th amendment’s equal protection clause. Ruling in favor of the plaintiff, the court determined that the practice of affirmative action was, in this case, a violation of Bakke’s 14th amendment rights.

The court’s decision in the Bakke case didn’t eliminate the use of affirmative action altogether, though it did place restrictions on how affirmative action could be implemented. Specifically, the court declared that although an applicant couldn’t be denied because of their race, schools could continue to use quotas “to promote educational diversity.”

In 2003, the question of fairness in college admissions again came before the Supreme Court in Grutter v. Bollinger and Gratz v. Bollinger, two cases that closely resembled Bakke’s 1978 case. In the first, the court ruled in favor of the University of Michigan, saying it was using acceptable affirmative action practices; in the latter case, this time with the undergraduate admissions process, the school was deemed as acting unconstitutionally. Both cases maintain the standards of the Bakke decision in that the importance of affirmative action programs—and constitutional usage—is to maintain diversity among students.

Affirmative action in the 20th century

Like Bakke before her, Abigail Fisher believed that her denial from the University of Texas was based on her skin color, rather than her academic merits and personal achievements. Having lost two cases against the University of Texas, Fisher and her lawyers appealed to the Supreme Court, who agreed to hear the case in 2012.

Given the legal precedent that had been established in in the court’s 1978 and 2003 rulings, Fisher’s case became a source of great debate for those who feared an overturning of affirmative action policies. Yet, in 2013 the Supreme Court surprised many observers by sending the case back to the Fifth Circuit court of appeals. Referring to the Supreme Court’s previous rulings, the Fifth Circuit judge again upheld the previous decision in favor of the University of Texas.

As of now, Fisher and her legal team have once again appealed to the Supreme Court, who will hear the case during the fall 2015 session.

Fisher v. University of Texas

During the civil rights era, affirmative action emerged as a means of ensuring equal opportunity for racial, ethnic, and gender minorities who had long been passed over in favor of white applicants for employment and higher education. As one might imagine, it has since become a hotly debated topic.

In a statement made in 2014, Fisher told reporters “It is a shame that for the last six years, hundreds of UT applicants were denied admission because of UT’s racial and ethnic preferences.” If she and these other applicants were denied on the basis of their race, then her comments deserve some consideration.

In order to avoid the often murky criteria for affirmative action, in 1996 the University of Texas implemented the Top Ten Percent Law. The policy grants admission to any applicant living in the state of Texas that graduated in the top ten percent of their class. In 2008 (the year Fisher applied), the university had filled 92 percent of its open spots with these ten percenters, leaving very few openings for the competitive undergraduate program. While Bakke was a top-notch students who did appear to be denied based on affirmative action quotas, Abigail Fisher was not in the top ten percent of her class, leaving her chances of being accepted on par with anyone else applying to the competitive school.

The future of affirmative action

Since its inception, affirmative action programs have helped minorities achieve goals that had previously been out of reach for no other reason than their race or gender. According to a New York Times report, since the banning of affirmative action in eight states, colleges have been unsuccessful in keeping up with the number of minority students graduating from high school.

The tumultuous history of affirmative action highlights the benefits that it offers to minorities and diversity in the college classroom, but it also highlights the potential for serious unintended consequences. Given these factors, there is much riding on the Supreme Court’s pending decision in the case of Fisher v. University of Texas. Should the court side with Fisher, their decision could mean the end of affirmative action in the United States.


David White is a contributing writer for, the world’s largest global marketplace for finding independent tutors.

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