Affirmative Action Survived The Supreme Court. Here’s Why That Matters.


On Thursday, the U.S. Supreme Court upheld an affirmative action program at the University of Texas at Austin in a 4–3 decision, after a lengthy legal battle over the policy. The decision hands a big victory to supporters of race-conscious affirmative action.

The lawsuit began in 2008 when the plaintiff in Fisher v. University of Texas at Austin, Abigail Fisher — who is white — argued she was denied admission to the university based on her race.

The University of Texas at Austin has a program often called a “Top 10 Percent” program that accepts students who graduated in the top 10 percent of their high school class. If students don’t make the top 10 percent, they can still be considered, but they would have to have a high score on a test that includes other characteristics of an applicant, such as leadership qualities — and the test factors in their race. Fisher argued that her race played too big of a factor in the school’s decision to deny her admission.

The Supreme Court last considered Fisher’s case in 2013 but declined to issue a conclusive decision, sending the case back to the Fifth Circuit court for more consideration. Thursday’s decision goes further, acknowledging that student body diversity is “central” to the educational mission of many schools, and in “striking this sensitive balance, public universities, like the States themselves, can serve as ‘laboratories for experimentation.’”


Surprise! Affirmative Action Just Won A Victory No One Expected In The Supreme CourtJustice by CREDIT: AP Photo/Denis Poroy For the last several years, supporters of affirmative action have awoken every…thinkprogress.orgThe decision was pretty narrow in that Kennedy reiterated the importance of first attempting “race-neutral” alternatives before race-conscious affirmative action policies, and emphasized there needs to be a “periodic reassessment” of these policies. This means that universities will have to do a lot of work to ensure their policy is effective and fair, by conducting long-term studies and analyzing data. As ThinkProgress’ Ian Millhiser points out, conservatives who oppose the policy could use the decision to bring costly lawsuits that would provide disincentives for universities to continue their race-conscious affirmative action policies.

But the fact that race-conscious admissions policies weren’t struck down entirely is certainly a win for proponents of this type of affirmative action.

Proponents feared that they may face attitudes similar to former Justice Sandra Day O’Connor, who speculated that affirmative action may no longer be necessary. It’s common for critics of affirmative action policies to argue that racial diversity can be achieved through other means. But the big question is whether those alternatives would produce results on par with the diversity achieved through the consideration of race — and the research shows that’s not the case.

Sigal Alon, associate professor in the department of sociology and anthropology at Tel-Aviv University and author of the upcoming book Race, Class, and Affirmative Action, told ThinkProgress last year that, when one considers how black and Hispanic people make up only a small fraction of all low-income youth, it’s clear that considering socioeconomic factors alone won’t cut it. Alon’s book shows that a race-neutral, class-based system would reduce the number of African American students in prestigious American universities by 50 percent and Hispanic students by 25 percent. That’s why it would have been unfortunate for students of color if the court decided race-conscious affirmative action would be taken off the table entirely.

Three-quarters of the University of Texas at Austin’s student body is admitted through its “Top 10 Percent” plan, which has led to increased racial diversity because it relies on heavily segregated schools. The top 10 percent of a predominantly black and Hispanic school will likely be students of color. ProPublica explains why, even if Fisher’s race hadn’t been factored into her application, she still wouldn’t have been admitted to the university. Although some students with lower test scores and grades than Fisher did receive provisional admission, that group was overwhelmingly white, Propublica reported.


Those who oppose affirmative action have also argued that universities don’t actually benefit from increased racial diversity, that students of color can’t compete with their peers, and that a truly fair admissions system would only admit students based on their academic strengths. But plenty of research has proven why these arguments fall flat.

For instance, both universities and K-12 schools that have diverse student populations have lower racial bias among students, and help students build their critical thinking skills and problem-solving skills. And despite arguments that students of color can’t succeed at prestigious colleges — an argument the late Justice Antonin Scalia mentioned when the court heard the case last year — research shows the opposite: students of color actually do better the more selective the college is.