Fisher Case: Fight for Diversity Not Over

Your Take: Ruling recognizes affirmative action as a fragile success, says the writer. But work isn't done.

Affirmative action supporter at the Supreme Court (Mark Wilson/Getty Images)
Affirmative action supporter at the Supreme Court (Mark Wilson/Getty Images)

(Special to The Root) — The U.S. Supreme Court has finally issued its long-awaited ruling in Fisher v. University of Texas at Austin, the latest case challenging affirmative action in higher education. Although many pundits expected a resounding defeat for defenders of diversity, their predictions proved to be wrong. The court sent the case back down to the U.S. Court of Appeals for additional consideration.

In plainspeak, that means the court declined to end affirmative action at the University of Texas or anywhere else in the nation. In fact, it came about as close as it possibly could to suggesting that diversity policies in higher education should continue, at least in some form.

But beyond the legal doctrine, the court’s opinion serves another, more practical function: It reminds us from where we’ve come and how far we still have to go. Instead of overruling its prior decision in Grutter v. Bollinger (the 2003 University of Michigan affirmative action case), the court embraced it, and did so by reaching back to Justice Lewis Powell’s 1978 opinion in Regents of the University of California v. Bakke, which introduced the language of diversity used by courts and institutions today.

In this way, the court showed how the diversity rationale is not of recent vintage but is, rather, a long-standing precedent. And although the majority opinion in Fisher did not invoke the earlier case Sweatt v. Painter, it is clear that the conceptualization of the educational benefits of diversity dates back to that case, which was litigated by the NAACP Legal Defense and Educational Fund. In that 1950 ruling, the Supreme Court ordered the University of Texas Law School to admit Heman Marion Sweatt, an African-American applicant who was denied admission based solely on his race. Key to the court’s ruling was the importance of being part of a network of students with the opportunity to learn and exchange ideas.

More important, this legacy of exclusion, shared by many other colleges and universities across the nation, helps to underscore and contextualize the importance of contemporary affirmative action policies. America’s racialized history in higher education cannot be easily ignored. And these lessons from the past set the stage for the markedly measured approach that the court took in Fisher.

Sweatt reminds us that it was not long ago that the presence of African-American students at a school like the University of Texas was just a dream, and that without continued resolve, the gains of the past could easily be lost. This theme has special resonance within the African-American community.

While we can rightfully note the advances since the days of legally mandated Jim Crow laws, it is equally worth noting how far we still have to go. After all, it is not as if America all of a sudden decided to be an equal and open society. It took the blood of civil rights activists, the sweat of legal strategists such as Thurgood Marshall and other early LDF lawyers, and the tears of those to whom the doors have been closed over the years. The court’s decision in Fisher is important because it implicitly recognizes what we all know: The America that we enjoy today — with an African-American president and African-American judges, professors and leaders in every aspect of American life — could perhaps best be characterized as a fragile success.