Affirming Acts in Broadening Access: The Fisher Ruling

by Eboni M. Zamani-Gallaher / Jun 27, 2016

On Thursday June 23, 2016, the Fisher v. University of Texas, No. 14-981 case finally ended with challenges to affirmative action rejected by the Supreme Court. In a 4-3 vote, the high court’s decision in Fisher upholds UT’s race-conscious admissions program and has larger implications for affirmative action in higher education. The Fisher case is one of many (e.g., Bakke v. University of California, Davis 1978; Hopwood v. University of Texas 1996; Gratz v. Bollinger 2003; and Grutter v. Bollinger 2003) that have contested the use of race (as one of many factors) to be considered in college admissions. Thirteen years ago from the Fisher decision (i.e., on the same date, June 23, in 2003), Grutter v. Bollinger was the official U.S. Supreme Court decision, which upheld the value of student body diversity until the recent Fisher ruling. Hence, the SCOTUS decision in Fisher v. University of Texas reaffirms that when universities select incoming students, they may consider race as one factor among many factors for admittance.

Affirmative action policies are an area that has long held my interest. I have studied affirmative action over the last 20 years, having written a master’s thesis, doctoral dissertation, articles, and a textbook, as well as taught a course titled “Access, Equity, and Affirmative Action for Educational Leaders.” While it is commonplace for affirmative action to be described as a singular concept whereby race is thought to be a lim­iting factor in admis­sions deci­sions, it is a broad set of activities comprised of various tailored policies and practices designed to address context-derived problems of discrimination and unfairness. Many incoming students (like Abigail Fisher), families, and the general public don’t often have an opportunity to further their understanding of the role of diversity in American schools or the multifaceted interrelatedness of culture and learning or fully comprehend affirmative action as a form of social justice in P-20 educational settings. Not every group in the U.S. has had access to the historical or contemporary repositories' social and cultural capital; because American institutions did not voluntarily seek diversity it was legislated. The existence and retrenchment of voluntary and compulsory forms of affirmative action in educational settings (e.g., outreach, recruitment, admissions, hiring, targeted training, financial aid/scholarships, goals, and timetables, etc.) have often resulted from court orders, constitutional mandates, regulatory laws, and institutional initiatives. Notwithstanding, challenges to affirmative action are nothing new in spite of evidence that demonstrates the positive impact of affirmative action (Bowen & Bok, 1996; Garces & Mickey-Pabello, 2015; Orfield, 2001).

Interesting Times…But It’s Not Over

The Fisher case is landmark in so many ways. The recent challenge of the state admissions program in Texas was the second time the court heard Fisher’s case, as the 2013 case was sent back to the U.S. Court of Appeals for the Fifth Circuit, though the Fifth Circuit ruled that the UT plan met the legal requirements. Another rare occurrence with this case is the ruling reflects only 7 justices weighing in as Justice Elena Kagan recused due to her work on the case while serving as a U.S. solicitor general. Her recusal could have resulted in a 4-4 tie if there had been a replacement for the late Justice Scalia. Supporting affirmative action were Justices Stephen Breyer, Ruth Bader Ginsburg, Anthony Kennedy, and Sonia Sotomayor, finding that UT’s undergraduate admissions plan withstood strict scrutiny in achieving the permissible goal of campus diversity and did not violate the Equal Protection Clause of the 14th Amendment to the United States Constitution. The University of Texas affirmative action program guaranteed admission to 75% of the incoming freshman class at public universities in the state of Texas to students who graduated from a Texas high school in the top 10% of their class. However, the plaintiff, Abigail Fisher was not a graduate in the top 10 percent of her high class; arguably, UT’s “Top Ten Percent Plan” isn’t as race-conscious as Grutter v. Bollinger, in which the use of race in higher education was permissible in achieving diversity a compelling state interest.

So what does all of this mean? Thursday’s decision is the definitive ruling (for now) that applies countrywide in every court that affirmative action is legal and will continue in public and private universities across the nation. This is yet another narrow victory as there are lawsuits pending with Harvard and the University of North Carolina that leave this matter still dangling. In fact, tomorrow, June 28th, the American Educational Research Association (AERA) will be hosting a public briefing “After Fisher: What the Supreme Court’s Ruling Means for Students, Colleges, and the Country” at the National Press Club.  

Contextualizing Affirmative Action: Relevance of Ruling to Community Colleges

The profile of community college students is unique with many community college students coming from diverse backgrounds and having aspirations for baccalaureate degrees and beyond. However, community colleges are not immune to challenges to affirmative action in hiring, with student scholarships, as well as in admissions. As for the latter, the case Camarena v. San Bernardino Community College District (1995, Case No. 95AS01512; later moved to U.S. District Court for the Eastern District of California CIV-S-95-589 MLS GGH) related to issues of academic access in the two-year context. Janice Camarena charged that she was excluded from a section of an English 101 course that was earmarked for the Bridge Transition Program because she was white and resented being told she could find another section in which to enroll. The Board of Governors entered into a settlement in Camarena. The Board agreed that it would not develop, endorse, coordinate, or sponsor any academic program or service that discriminated against students based on race, color, national origin, or ethnicity or that was intended for, designed for, or targeted to students of a particular racial/ethnic background while programming based on gender was still permissible. The out-of-court settlement in the Camarena occurred amid racialized affirmative action retrenchment in the state of California with Proposition 209 banning affirmative action statewide through ballot referendum passed shortly after Camarena in 1996 in which the consideration of race, ethnicity, and gender were prohibited.

When it comes to community colleges, open door does not automatically equate to open access, especially when considering high-skill, high-demand, technical areas such as nursing and other health sciences programs. Little research has been done that is inclusive of the community college sector. What we do know about attitudes toward affirmative action among community college students with baccalaureate aspirations is that students of color and women were less likely to agree with abolishing affirmative action in college admissions in contrast to Whites and males. In particular, among community college baccalaureate aspirants, those with higher GPAs and those that felt that racial discrimination is no longer a problem expressed more in favor of ending affirmative action (Zamani-Gallaher, 2007).

Engaging Students in the Discourse

It is important for postsecondary educators to be aware of student attitudes toward affirmative action at two- and four-year institutions of higher learning. One of activities that I have had my students do in considering the utilities and complexity of affirmative action in college admission is for them to complete a web-based simulation called “Diversity vs. Merit.” It introduces students to a fictional case study involving admissions decisions at a hypothetical university. This exercise allows students to weigh admissions and affirmative action considerations independently and then enter a conversation in person in small groups where I ask them to deliberate on the applicants who represent a range of diverse groups and render the final judgment. I require that students use the scenario, related discussion, and analysis of the various arguments made as a springboard for writing case study papers to highlight “real” issues related to affirmative action, aimed at illustrating theory-to-practice, and activist leadership. The aforementioned assignment or similar activities can be modified for use with undergraduate and graduate students in reconciling the following:

  • Who is college for?
  • What are the pros/cons of percentage plans?
  • Should a single measure of merit, such as standardized test scores or high school performance, be used to judge all students?
  • Are some ways of measuring "merit" inherently biased against certain groups? Is there any way of judging "merit" that is fair to all groups?
  • How should "equal opportunity" be defined? If all groups are legally entitled to apply to and attend college, does this constitute "equal opportunity"?
  • Do students from more privileged groups get unfair advantages in college admission and are special efforts needed to make sure that less privileged students get a fair chance?
  • What were the simplicities and difficulties of this selection process?

The above listed queries for reflection are but a sample of the possible queries and considerations in discussing affirmative action in college admissions. In addition to the aforementioned, I invite students to consider pro/con arguments for affirmative action using Rawls's theory of Justice as Fairness. His original position holds that the nature of justice as fairness is a social contract designed and accounting for impartiality that is fundamental and should guide our reasoning about the fundamental principles of justice. While his original position holds that everyone decides on the rules for society from behind a veil of ignorance (being blind to one's own social status for example; in considering affirmative action one must not know whether one is going to be a beneficiary or not if deciding on what is fair). From this original position, Rawls (1957) believes that there are two principles of justice – the liberty principle, which holds each person has an equal claim basic rights/liberties, and the difference principle, which only permits inequalities that work to the advantage of the worst-off. Very interesting classroom discussions have resulted from having students frame their arguments for and/or against utilizing Rawls's Theory of Justice. 

Having students take part in deliberative dialogue on affirmative action is an opportunity to engage learners on conflict, diversity, issues of access, equity-mindedness, and activist leadership. Despite the SCOTUS ruling on Fisher Thursday, contesting affirmative action continues. It will be interesting what emerges over the remainder of 2016 with the presidential election and possible confirmation of a new Supreme Court judge before year’s end. In the interim, steps toward activist leadership can be made across collegiate contexts (Zamani-Gallaher, Green, Brown, & Stovall, 2009) by moving beyond merely stating a commitment to educational access, equity, and diversity to taking a position, acknowledging/promoting the panorama of access, and articulating a clear message regarding the importance of the tenets of affirmative action to an inclusive campus community. 


  • Bowen, W. G., & Bok, D. (2016). The shape of the river: Long-term consequences of considering race in college and university admissions. Princeton University Press.
  • Garces, L. M., & Mickey-Pabello, D. (2015). Racial diversity in the medical profession: The impact of affirmative action bans on underrepresented student of color matriculation in medical schools. The Journal of Higher Education, 86(2), 264-294.
  • Orfield, G. (2001). Diversity challenged: Evidence on the impact of affirmative action. Cambridge, MA: Harvard Education Publishing Group, Harvard Graduate School of Education.
  • Rawls, J. (1957). Justice as fairness. The Journal of Philosophy54(22), 653-662.
  • Zamani-Gallaher, E. M. (2007). The confluence of race, gender, and class among community college students: Assessing attitudes toward affirmative action in college admissions. Equity & Excellence in Education, 40(3), 241-251.
  • Zamani-Gallaher, E. M., Green, D. O., Brown II, M. C., & Stovall, D. O. (2009). The case for affirmative action on campus: Concepts of equity, considerations for practice. Sterling, VA: Stylus Publishing.