Supreme Court ruling in Fisher v. U. of Texas:

Supreme Court Tightens Noose Around Affirmative Action

July 7, 2013 | Revolution Newspaper |


The Supreme Court on Monday, June 24, issued their ruling in the case of Fisher v. University of Texas at Austin. Abigail Fisher, a white Texas student, had sued the University claiming she had been a victim of racial discrimination when she was denied admittance. By a 7-1 ruling, the Court sent the case back to the lower court for reconsideration. While this may seem to be a "benign" or "neutral" decision, it is anything but that.

In essence what all but one of the justices deciding the case agreed on was that the Appeals Court had been too lenient toward the University; that it had failed to "hold the university to the demanding burden of strict scrutiny" in proving that its admissions program, because it includes a secondary role for considering some applicants' nationality, wasn't discriminating against white students.

In other words, college admissions programs that give any consideration to the national/racial make up of the student body, or even the nationality of an individual applicant, can be required by the courts to meet the additional burden of proving that 1) a "compelling governmental interest" is involved; 2) every "race-neutral" means of achieving its objectives has been exhausted; and 3) in its crafting and its execution the university can demonstrate that it has been "narrowly tailored" to achieve that interest.

The Supreme Court banned affirmative action programs in the 1978 Bakke ruling and is now insisting that university admissions programs prove that they aren't trying to keep these programs and policies in place through deception.

Scalia and Thomas "Concur"

While there was agreement by a near-unanimous majority that the lower courts had failed to enforce this standard strictly enough on the University of Texas, Justices Scalia and Thomas, two virulent opponents of any consideration of race in college admissions, filed concurring opinions clarifying their reasons for signing on. Scalia wrote only a paragraph; Thomas' opinion was substantial. As Lyle Denniston reported, Justice Thomas' opinion "...was a lengthy essay on the history of racial segregation, and came very close to accusing modern-day proponents of 'affirmative action' of being the new segregationists.1

Thomas' opinion was also a broadside against previous rulings of the Court—in particular Grutter v. Bollinger (2003)—which had provided a narrow exception to the full blown ending of affirmative action—based on the argument that a certain amount of racial "diversity" could be shown to benefit the educational environment of those not the target of discrimination. Thomas wrote; "As should be obvious, there is nothing "pressing" or "necessary" about obtaining whatever educational benefits may flow from racial diversity." To Thomas there is no reason why the government should be concerned about the continued discrimination in colleges and universities, and in society, that keeps students of oppressed nationalities out.

According to Denniston, Justice Ginsberg, the sole dissenting vote, complained "the lower court had already conducted the analysis that the [Supreme] Court was telling it to do over again. She also made the secondary point that she strongly favors the use of race when that is a 'benign' method of making up for a long history of racial discrimination in America."2 Justice Kagan did not take part in the deliberations because she had been involved previously in the case while working for Obama.

Affirmative Action

In the face of tenacious, courageous struggle in 1950s and 1960s, the rulers of the U.S. made concessions in granting formal equality to African-Americans. Overt rules against admitting Black students to universities, for example, were thrown out. But these changes hardly scratched the surface in terms of ending inequality. Granting "equal access" to universities to everyone with grade point averages, advanced placement courses, and skill sets that are only available to people with access to libraries, tutors, or good schools still locked the vast majority of Black people out of universities. And the same was true in all kinds of realms of society, from good-old-boy networks that were a requirement to become fire fighters, to traditionally "whites only" positions in corporations. Under these circumstances, some concessions were made beyond simply getting rid of "whites only" regulations. Affirmative action policies that, for example, set aside a certain number of jobs, or college admission positions for Black people, did scratch the surface of generations of discrimination. These affirmative action policies were far from enough, but they immediately came under ferocious assault from the powers-that-be, usually in the form of claiming addressing systemic discrimination any meaningful way constituted so-called "reverse discrimination." In this way, the principle of formal "equality" was invoked to maintain and deepen historic injustices.

Courts Sanction Denial of Opportunity: The Bakke Decision

In the famous Regents of the State of California v. Bakke decision in 1978, the Supreme Court struck down as unfair to white students the admissions program at the UC Medical School at Davis. The school's admissions program had been aimed at 1) overcoming the historic denial of access of oppressed nationalities in medical schools and the medical profession; 2) countering the effects of societal discrimination; 3) increasing the number of physicians who would practice in communities currently underserved; and 4) obtain the educational benefits that flow from an ethnically diverse student body.

The Supreme Court's ruling in Bakke declared that any efforts to affect the racial composition in college admissions through affirmative action were unconstitutional, because they discriminate against and disadvantage those who are benefiting from that continued discrimination—students of the dominant nationality. In the case of Bakke, UC Davis Medical School supposedly had 16 of its 100 freshman positions set aside for applicants of oppressed nationalities. This so-called "quota system" was the explicit target.

The ugly result of banning affirmative action was the dramatic drop-off in admissions of Black, Latino, and other historically under-represented students. At the University of California Law School, in the year after affirmative action was banned in admissions, not a single Black student was admitted and enrolled in its freshman class of 170 students. In graduate schools across California, the numbers of Latinos, Filipino-Americans, and African-Americans in graduate school fell by 18 percent. Applications to the University of Texas law school from Black students fell 26 percent and applications from Latino students were down by 23 percent. Consider what the ripple effect must have been when some of the country's largest graduate school systems produced fewer doctors, lawyers, and others who serve oppressed nationality communities.

Admissions boards can consider race or nationality only as one of many secondary factors that go into a "holistic" approach to evaluating applicants; not with the goal of reducing discrimination, but of providing a diverse learning environment for the rest of the student body. These admissions programs have led to modest increases in the percentages of oppressed nationality students at the schools and universities around the country; but seldom have they gone beyond those prior to Bakke.

The University of Texas patterned its admissions program after that of Harvard University, which was described as "exemplary" in the Bakke decision. Eighty percent or more of its freshmen class come from the "Top Ten Percent Law" that automatically admits Texas high school seniors in the top 10 percent of their class. The remaining Texas residents compete for admission based on academic and personal achievement scores. Within this final factor, nationality is considered as one "plus" factor. And this is only considered on an individual basis; the aggregate numbers of different nationalities are not considered during this process.

Challenging the lower court's decision to accept the U. of Texas's admissions policy in particular, a message has been sent that white students anywhere in the country who believe they were unfairly rejected for admission because of "reverse discrimination" can sue, with the burden on the college or university to prove that its admissions policies meet the strict criteria of the Court.

Will this ruling convince university administrators to voluntarily "self-censor," and rewrite their admissions policies to ensure race is eliminated as a factor in any way? It remains to be seen. But looking into the future, as Mary Dudziak, author and Asa Griggs Candler Professor of Law at Emory University pointed out, "The court's approach also puts judges in the driver's seat for determining college admissions programs. This leaves the court with an outsized role in setting educational policy."3

Putting an End to the Historical Crime of Slavery and Its Legacy Will Take a Revolution

The reality is that one sharp expression of the continued effect of the historical crime of slavery is the way that African-Americans have been systematically denied access to the colleges, universities, and graduate and professional schools. The very first statement in BAsics, from the talks and writings of Bob Avakian is this: "There would be no United States as we now know it today without slavery. That is a simple and basic truth." (BAsics, 1:1)

Contrast the way the highest court in the land has, for decades, marshaled all of its power and authority against any and every attempt to overcome the continuing legacy of oppression and exploitation in the realm of education, with what is said in the Constitution of the New Socialist Republic in North America (Draft Proposal) about the active role the socialist state will play in finally overcoming this inequality and oppression after the revolution:

the orientation, laws and policies of the government of the New Socialist Republic in North America shall also attach great importance to—and shall wield to the fullest extent the political, legal and moral force, authority and influence of the government on behalf of—achieving the full equality of nationalities within this Republic and to overcoming the whole history and continuing effects of national oppression, not only in this society but throughout the world. (p.77)

It will take a revolution, and nothing less, to finally put an end to this long nightmare of discrimination and oppression for the millions and millions of Blacks, Latinos, Native Americans and others. The very reason it is so crucial and urgent for the movement for revolution to take hold among the youth in the colleges and universities, and in the high schools, as a powerful revolutionary force, is also the reason the ruling class insists on keeping a tight grip on administrators, and faculty, as well as students. They see what impact the revolt of educated youth is having in a growing number of countries, and regions, of the world today; they know the enormous role students played in the revolutionary movement in the U.S. and internationally in the 1960s; and they are fully aware as well of the role the youth and students of the oppressed nationalities played in that period in awakening and bringing revolution to Black people and other oppressed peoples as a whole. Now think about the strategic potential that lies just beneath the surface today:

Even with very real changes in the situation of Black people, as part of the larger changes in the society (and the world) overall—including a growth of the "middle class" among Black people, an increase in college graduates and people in higher paying and prestigious professions, with a few holding powerful positions within the ruling political structures, even to the extent now of a "Black president"—the situation of Black people, and in particular that of millions and millions who are trapped in the oppressive and highly repressive conditions of the inner city ghettos, remains a very acute and profound contradiction for the American imperialist system as a whole and for its ruling class—something which has the potential to erupt totally out of the framework in which they can contain it.

BAsics: from the talks and writings of Bob Avakian, 3:18

1. Lyle Denniston, "Opinion recap: More rigorous race review," SCOTUSBLOG, 6-24-13 [back]

2. Denniston, ibid. [back]

3. "Why affirmative action took a hit," special to CNN, 5/24/13 [back]


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