'Equal Justice Under the Law': Why the End Is Near For Affirmative Action

It’s been more than three decades since the U.S. Supreme Court first gave thumbs up to the doctrine of affirmative action in higher education. The decision in Regents of the University of California v. Bakke, 1978 is somewhat complex, but the crux of the multi-pronged ruling is that while affirmative action policies are constitutional, a quota system based on race is unconstitutional. Many thought the decision amounted to judicial hair-splitting, and sure enough, the controversy was far from over.

Here in California, voters decided they should have the final say. It was the mid-1990’s, 1996 to be precise, and the state’s politics still showed signs staunch conservatism. Two years earlier, voters gave a thumbs up by a large margin to Proposition 187, the “Save Our State”initiative. It would have established a state-run citizenship screening system to prohibit illegal aliens from using health care, public education, and other social services in the California. With Prop 209 the state’s voters outlawed “preferential treatment” by race, effectively ending affirmative action in the Golden State.

Conversely, in 2003, Justice Sandra Day O’Connor authored a high court decision reaffirming the doctrine, saying in a case involving the University of Michigan Law School that colleges and universities could institute as policy limited racial preferences in order to achieve “diversity on campus”. At the time, O’Connor suggested, rather randomly, that after another 25 years, if racial prejudice continued to wane, such preferences would no longer be defensible.

Just this week, the High Court announced it will hear the case of a Texas woman whose plight highlights the urgent need for the policy of affirmative to be revisited on a national level. Abigail Fisher from Sugar Land, Texas, was turned down for admission at the University of Texas in 2008. Her grades were not good enough to put her in the top 10% of her class, which would have resulted in automatic admission to the school. However, she presented evidence that her tests and grades greatly exceeded those of many of the admitted minority candidates. She sued, alleging racial discrimination in violation of the Constitution’s guarantee of equal protection.


Predictably, Fisher’s claim was rejected by a federal judge and the U.S. 5th Circuit Court of Appeals, sending it to the Supreme Court. Fisher has since enrolled at Louisiana State University where she is due to graduate this spring.

Why is the race based doctrine of affirmative action now on very thin ice?

Equal Justice Under Law. The words are etched in stone on the front of the United States Supreme Court building. Far too many students, like Abigail Fisher, don’t benefit from that simple constitutional concept. Many students, depending on their race–Black or Hispanic–in particular, receive preferential treatment at the expense of their White and Asian brethren. No one argues that we don’t benefit from a diverse student body at our universities, but evidence suggests the issue is actually being addressed. As of five years ago, the University of Texas, Austin campus said it had a record high number of entering Black and Hispanic students, making up about 26% of the freshman class. While the numbers of Black and Hispanic students in California universities dipped after Prop 209’s passage, they have since increased.

In 2028, as predicted by Justice O’Connor, will affirmative action suddenly not be necessary? Will the beneficiaries of the doctrine simply agree that they no longer need the extraordinary boost engendered in the discriminatory policy? Not likely. In fact there is still tremendous resistance in California to the idea that race is no longer a factor in university admissions. Because Prop 209 amended the California Constitution, it repealed all existing public sector affirmative action programs in California not required by federal law. In reality, the programs have stayed in place because the liberal California Legislature has declined to repeal them and no lawsuit has been filed to challenge their constitutionality.

Now that Justice O’Connor has been replaced by Samuel A. Alito Jr., a five justice conservative majority is on record against the use of “racial balancing” AKA affirmative action, by universities. In a recent Supreme Court ruling that prohibited race-based transfer policies in elementary and high schools, Chief Justice John G. Roberts Jr. said “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” You don’t say.

The rationale for the forthcoming Supreme Court decision is likely to be based in a clear cut constitutional protection: No state shall … deny to any person within its jurisdiction the equal protection of the laws. The ruling in Abigail Fisher’s case will likely severely restrict if not eliminate affirmative action.

In the aftermath of the ruling an important message will be sent to American school kids: Work hard and reap the benefits of your success, no matter what your ethnicity. It’s fair. It’s the American way.


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