In Fisher decision, Supreme Court failed minorities

Mark Birkenstock

On June 24, the Supreme Court issued its long-awaited decision for Fisher v. University of Texas at Austin, the case brought by Abigail Fisher which sought to curb UT's ability to use race as a factor in its admissions process. The court's decision was viewed as a victory by both sides: The court did not call for an outright ban on affirmative action as some feared, but they did demand that race-based admissions programs be judged using a test known as "strict scrutiny." UT will now have to prove to the lower courts that its use of race in admissions is necessary to increase diversity. If UT cannot prove that, it might result in a situation where race-based admissions are technically legal but in practice the courts will always strike them down. 

As the Fisher case returns to the lower courts, the University's opponents will likely use the success of the Top 10 Percent Plan against it, claiming that it has been so successful in increasing diversity that explicit consideration of race is unnecessary. However, as Justice Ruth Bader Ginsburg pointed out in the only dissenting opinion, "Texas' percentage plan was adopted with racially segregated neighborhoods and schools front and center stage." Thus, she found it laughable that the Top 10 plan was a race-blind way to increase diversity. She recalled a quip from the law professor Thomas Reed Powell: "If you think that you can think about a thing inextricably attached to something else without thinking of the thing which it is attached to, then you have a legal mind." As we observe the aftermath of the Fisher case, it is important to consider how this court full of "legal minds" has become dangerously out of touch with the everyday reality of racism that Americans of color must face.

The requirement of "strict scrutiny" carries the implied message that racial discrimination is no longer something that must be fought for on a large scale. The fact that the court has questioned the necessity of a program designed to counteract a long history of racial injustice shows just how naive they are about the severity of racism in this country.

Is racism over in this country? Not even close. As of July 2012, only 4.2 percent of Fortune 500 CEOs were people of color, according to the Center for American Progress. How about in government? The current Congress is the most diverse in history, but even so the Senate is still almost entirely white, having only five people of color. Now is absolutely not the time to stop fighting racism, and the court's lack of perspective in regard to racial injustice threatens to halt or even reverse the progress that has already been made.

Justice Clarence Thomas' stance toward affirmative action is a particularly concerning example of the court's lack of understanding of pragmatic race politics. Thomas spent most of his lengthy concurring opinion comparing affirmative action to segregation and slavery, failing to meaningfully consider that segregation and affirmative action have, by definition, opposite goals. He also argued that affirmative action hurts students of color, because those admitted under such programs cannot handle the schoolwork. "Blacks and Hispanics admitted to the University as a result of racial discrimination are, on average, far less prepared than their white and Asian classmates," he said. While his statistics on this point may well be accurate, he seems unconcerned that the root of this problem is in fact the same long-standing racial injustice which affirmative action aims to fix. How does Thomas expect students of color to be just as prepared as their white counterparts when they have grown up in communities systematically deprived of the resources necessary to provide quality education?

Of course, it must be recognized that the Supreme Court does not have unlimited power to create and alter laws as it pleases, and it must judge its cases within the lines of the law as it is written. However, the court does interpret the law, and it is naive to think that the justices do not use their own values and perspectives as they decide cases that affect our nation's future. Although the ruling handed down in Fisher could have been far worse news for advocates of racial equality, a troubling disconnect has been revealed between the court's idealistic denial of race and the reality that racism is still at large. The court's equivocating decision hides behind the precedent of "strict scrutiny," and the justices have blissfully ignored the racial discrimination with which ordinary people of color must live every day. Unless our justices can supplement their "legal minds" with a sensible dose of pragmatism and human compassion, we have good reason to worry for the future viability of the highest court in the land.

Birkenstock is a linguistics junior from Long Island, N.Y.