Fisher Case: Fight for Diversity Not Over

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.


In fact, a negative ruling from the Supreme Court could have wiped out much of the progress of the recent past. Consider, for example, the way many people rise to the ranks of leadership. Writing for the court in Grutter, Justice Sandra Day O'Connor explained, "[i]n order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity." This is particularly true at state universities, which educate the lion's share of those who go on to become leaders in many states. Research by LDF staff shows that in states such as Michigan, Alabama, Florida and Maryland, close to 70 percent or more of state legislators obtained undergraduate or advanced degrees from their respective state's colleges and universities.

Even with the race-conscious affirmative action policies that are currently available, access and opportunity for African-American students seeking to attend these schools is still far from ideal. This is especially true in an era when the "new economy" has made college access and affordability even more difficult. So just imagine what could happen if affirmative action — one of the best tools available to promote diversity and opportunity — were lost. The impact could extend beyond individuals and affect entire communities and the very legitimacy of our institutions.


How could African Americans be expected to ascend to the ranks of leadership without first having had opportunity? How could legislators and policymakers be expected to govern together without first having had a chance to learn from one another? And how could residents of every race and ethnicity be expected to respect their elected institutions if they do not reflect their own lived experience and voice?

Despite notable progress, the threat of retrenchment, in the form of a retreat from the promise of diversity and opportunity, is still real. Our work is not yet complete. Stark racial disparities in education continue to limit opportunity for African-American students, from elementary school through college. So schools like the University of Texas should be urged to do more, not less, to develop creative policies that open and maintain access to higher education for all of our nation's students. They should consider all barriers to higher education across the spectrum, including recruitment, admission, retention and graduation.


And just as our work as a nation remains undone, so, too, does our work remain undone in the Fisher case. LDF has represented the Black Student Alliance at the University of Texas at Austin since the early stages of the case. Now, as the case goes back to the lower court, LDF will continue to lift up the voice of these students who know better than most that it takes continued vigilance to ensure that the gains of the past translate into the promise of the future.

Damon T. Hewitt is the director of the Education Practice Group for the NAACP Legal Defense and Educational Fund.


The Root aims to foster and advance conversations about issues relevant to the black Diaspora by presenting a variety of opinions from all perspectives, whether or not those opinions are shared by our editorial staff.

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