Fisher Decision Represents Important Gain in Use of Race to Achieve Diversity in Recent Jurisprudence

As reported widely, the U.S. Supreme Court last week (6/23) voted 4-3 to uphold a University of Texas affirmative action program (“Fisher v. University of Texas”) that considered the use of race and/or ethnicity as a relevant factor (amongst others) in achieving campus diversity. The program was challenged on this basis as discriminatory and numerous legal experts had voiced concerns on the future of the program, and the general use of race as a viable factor of achieving integration in higher education, when the Supreme Court vacated the original Fisher decision in 2013 (which upheld affirmative action) and ordered the Fifth Circuit Court of Appeals to reconsider the case.

This recent June 23, 2016 decision, however, affirmed the original Fifth Court of Appeals’ decision on the salience of race as a factor to achieve student diversity. The use of race in this context was also hailed by leading universities and civil rights entities as essential to advancing educational equity — what Columbia University President, Lee Bollinger, whose own 2003 Supreme Court case “Grutter v. Bollinger” directly relates to “Fisher,” described as “vital to our schools’ missions and to society as a whole,” in a June 24 New York Times article.

Though the “Fisher” decision will not affect the use of race in university admissions in the State of Michigan, due to the state’s controversial 2006 legislation that widely banned affirmative action, the case does represent a more positive turn from recent Supreme Court rulings, most notably the 2007 “Parents Involved in Community Schools” case, that highly limited the use of race as a factor in student composition and diversity. More information on “Fisher” and its precedents can be found in the recent Institute for Social Progress publication (Ivery/Bassett), Reclaiming Integration and the Language of Race in the “Post-Racial Era (Rowman&Littlefield), in an insightful essay by Gary Orfield, titled, “A Personal Reflection: The battle for Diversity on Campus: The Supreme Court, Civil Rights Research, and Affirmative Action in the Twenty-First Century.”