And the Supreme Court Punted…


In the continuing drama surrounding the case of Fisher v. University of Texas, the suit challenging Texas’s race conscious college admissions policy, the Supreme Court punted. In a 7-1 decision, SCOTUS decided against the University of Texas, but also put off deciding on the constitutionality of affirmative action. Instead, SCOTUS decided the lower court failed to apply strict scrutiny to the Texas program and asked it to try again.

So affirmative action in higher ed is safe for the moment, but the fight isn’t over.

The Fisher case is important. I know many have argued that the case looks weak on the surface. Dr. Oi-Yan Poo, made this point very clearly, writing,

…in 2008 the average SAT score for admitted students, who were not ranked in the top 10% of their high school graduating class, was 1285 out of 1600. Not only did Fisher not rank in the top 10% of her high school class, her academic profile was pretty mediocre with an 1180 SAT and 3.59 cumulative GPA. Exactly 47 applicants with lower SAT scores were admitted that year, and 42 of them were white. There were also 168 Black and Latino applicants with higher academic scores than Fisher who were also rejected by the University of Texas.

But the case isn’t just about Abigail Fisher’s qualifications. Bigger issues are at stake, and with potentially broad implications.

Here’s part of what the University of California had to say about the impact of affirmative action in a friend of the court brief:

In November 1996…California voters enacted Article I, Section 31 of the state Constitution, widely known as Proposition 209, which provides that “[t]he state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”

Proposition 209, which took effect for undergraduate admissions in 1998, had an immediate and dramatic adverse effect on the admission and enrollment of underrepresented minority students at the University of California. In the ensuing years, the University of California has adopted a number of different strategies in an attempt to reverse that decline in underrepresented minority students, including expanding its outreach program to secondary schools, incorporating a broader and more comprehensive set of admissions criteria, adopting “holistic” review of applicants, decreasing the weight given to standardized tests, and admitting a specified percentage of the top graduates from each high school under an “Eligibility in the Local Context” program similar in certain respects to UT’s “Top Ten Percent” Program. To date, however, those measures have enjoyed only limited success. They have not enabled the University of California fully to reverse the precipitous decline in minority admission and enrollment that followed the enactment of Proposition 209, nor to keep pace with the growing population of underrepresented minorities in the applicant pool of qualified high school graduates.

In other words, nothing works as well as race conscious affirmative action in promoting educational opportunity for people of color once you get to the point of admission. That matters.

Currently the ratio of wealth of whites to blacks is eight to one. And since parents’ wealth is the most powerful indicator of a child’s future success, that wealth gap is a driver of inter-generational poverty.

In addition, growing up in poor neighborhoods is a powerful force in shaping our kids’ future success. That’s true regardless of race. But, kids of color are far more likely to live in high poverty neighborhoods.

And the poorer we are, the more likely we are to attend segregated schools. In 2010, 74.1 percent of black students attended segregated schools . And if you think that meaningful progress is being made on this issue, think again. 76.6% of black students attended segregated schools in 1965. And the persistence of segregation in housing and education go hand in hand with the educational achievement gap between whites and blacks in part because majority black schools still have significantly fewer resources than majority white schools on average.

Unless we address these conditions, and from the looks of our Congress and the majority of state legislatures, that doesn’t appear likely to happen, affirmative action in college admissions will remain vitally important. It’s one of the few ladders to success for young people of color.

We might not need affirmative action if we enjoyed greater equity in school funding. Similarly, if we desegregated our public schools, invested more in up-to-date vocational and job training programs in high schools and community colleges, created a more robust social safety net, and alleviated neighborhood stresses by ending the war on drugs and diverting that funding to education, drug treatment and community-based public safety programs, affirmative action at the point of college admissions might not seem like such a big deal.

But we don’t live in that world. Until we do, we have to keep fighting.


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By Scot Nakagawa

Scot Nakagawa is a political strategist and writer who has spent more than four decades exploring questions of structural racism, white supremacy, and social justice. Scot’s primary work has been in the fight against authoritarianism, white nationalism, and Christian nationalism. Currently, Scot is co-lead of the 22nd Century Initiative, a project to build the field of resistance to authoritarianism in the U.S.

Scot is a past Alston/Bannerman Fellow, an Open Society Foundations Fellow, and a recipient of the Association of Asian American Studies Community Leader Award. His writings have been included in Race, Gender, and Class in the United States: An Integrated Study, 9th Edition,  and Killing Trayvons: An Anthology of American Violence.

Scot's political essays, briefings, and other educational media can be found at his newsletter, We Fight the Right at He is a sought after public speaker and educator who provides consultation on campaign and communications strategy, and fundraising.