Fisher v. University of Texas at Austin

by Atiba R. Ellis, Associate Professor, West Virginia University College of Law. This post is part of an ACSblog symposium on Shelby County v. Holder.

In Shelby County v. Holder, the opponents of Section 5 of the Voting Rights Actargue that this provision acts as a bludgeon that crushes the ability of the covered jurisdictions to legislate freely concerning the electoral process. The premise of this argument is that the America – and especially the jurisdictions covered by Section 5 – has triumphed over the problem of race. The voter suppression that existed in 1965 no longer exists.  An America that can elect an African-American president no longer needs to micromanage the election processes of certain states and localities on the basis of race. The opponents’ claim is that we live in a post-racial world, and a Congress that fails to recognize this has overstepped its constitutional role. 

These two premises – that race is a relic of the past and that Congress has overreached its power to manage the electoral process – are false.

Yet it is appealing to believe that we as a country have triumphed over the problem of race. This narrative tempts all of us, liberals and conservatives, to move on to other problems and feel good about ourselves. For the political right, if race is no longer a problem, then the ridicule conservatives suffer because they are typecast as being “bad on race” is no longer valid. For the political left, the triumph over race represents the realization of the liberal vision of racial harmony. The end effect is that once we believe this view, we avoid race discussions and eschew race-conscious remedies despite the facts. 

by Jeremy Leaming

In 2003 a much different U.S. Supreme Court upheld the right of universities to shape their student bodies, in part, by relying on race-conscious admissions policies. Today, a more conservative court examined the constitutionality of the University of Texas at Austin’s admissions policy, which considers race among many other factors.

The university’s admissions policy is being challenged by a white woman, Abigail Fisher, who says her constitutional rights were subverted by the school’s admissions policy. An array of groups has lodged friend-of-the court briefs both for and against the policy. Conservatives have long hoped to end race-conscious admissions policies arguing they violate the Constitution’s equal protection clause. But in its 2003 Grutter v. Bollinger opinion, the high court led by Justice Sandra Day O’Connor upheld the University of Michigan law school’s race-conscious admissions policy, finding that the school’s compelling interest in creating a vibrant educational experience was not an affront to the equal protection clause. The Grutter majority “recognized that racial and ethnic diversity is a compelling state interest of public colleges and universities,” and that the Court’s precedent supported giving deference to schools’ decisions on their educational missions.

But that opinion failed to dissuade rightwing pundits, activists and outfits from continuing to claim that it is long past time for universities to stop taking race into account when creating student bodies.

In an extensive piece for Media Matters, Sergio Muñoz describes the “Myths and Facts” about race-conscious admissions policies.

For example rightwing or libertarian activists have long argued that a “correct” reading of the Constitution forbids race-conscious policies. Muñoz notes that frequent National Review writer Roger Clegg says that race-conscious “government actions are ‘untenable’ with the Constitution.” But Muñoz, citing an amicus brief filed by the Constitutional Accountability Center, notes that for decades the high court has recognized that such policies are permissible pursuant to the Fourteenth Amendment. “As our brief explains, not only does the Amendment’s text permit government to enact race-conscious policies to fulfill the Constitution’s promise of equality, but the Framers of the Amendment themselves enacted such measures.”