Education Case Comment 130 Harv. L. Rev. 185

Fisher’s Cautionary Tale and the Urgent Need for Equal Access to an Excellent Education



Debates over race-conscious affirmative action in higher education admissions remain central to discussions about the meaning of equality and the role of education in advancing equal opportunity. These debates continued last Term in the Supreme Court when, for only the second time in the Supreme Court’s history, the Court held that an institution of higher education may consider an applicant’s race as a factor to achieve diversity’s educational benefits. In Fisher v. University of Texas at Austin (Fisher II), the Court held that the University of Texas had presented sufficient evidence to establish that its pursuit of the educational benefits of diversity through a race-conscious admissions policy satisfied the Court’s demanding strict scrutiny inquiry. Some view Fisher II as cause for celebration and a victory for equal educational opportunity, while those opposed to affirmative action vow to continue their battle against it and decry such policies as discriminatory. Harvard University and the University of North Carolina are currently being sued over their consideration of race in admitting students. A coalition of Asian American organizations filed complaints with the United States Department of Education (DOE) against Brown University, Dartmouth College, and Yale University in May 2016, alleging race-based discrimination in admissions at these schools. Arizona, California, Florida, Michigan, Nebraska, New Hampshire, and Washington have banned the consideration of race in admissions by state universities, and the Court has upheld the lawfulness of such bans.

As these debates continue, it is important to understand that the Court’s decisions on affirmative action and educational opportunity establish a fundamental conflict. The Court’s jurisprudence on affirmative action requires an endpoint for affirmative action. In 2003, the Court in Grutter v. Bollinger stated that affirmative action to ensure diversity’s educational benefits must eventually come to end and suggested that that end point would be twenty-five years after Grutter. In prior opinions, the Court also has noted the importance of an end to the consideration of race. Even if a liberal majority on the Court extends the life of affirmative action in university admissions beyond Grutter’s 2028 deadline, the natural pendulum swings of the Court’s composition are likely to lead to a conservative-leaning Court that eventually insists on an end to affirmative action.

Yet despite insistence on an end point for affirmative action, the Court’s jurisprudence on equal educational opportunity has frustrated attempts at reform that might eventually obviate the need for affirmative action. Postsecondary institutions consider the race of applicants in substantial part because of the racial achievement gap between applicants on standardized test scores and the systemic disparities within elementary and secondary education that cause these gaps. The Court closed a powerful door to addressing those gaps in San Antonio Independent School District v. Rodriguez. In Rodriguez, the Court held that the United States Constitution neither recognizes a right to education nor provides a remedy for funding disparities between districts in a state. While acknowledging the need for state funding reform, Rodriguez left such reforms to the laboratory of the states. Although some reform has occurred, this laboratory has too often proven that states are unwilling to provide the equal access to an excellent education that all children deserve. As a result, widespread racial and socioeconomic disparities in educational opportunity persist and remain a principal cause of the achievement gap between low-income and minority students and their more affluent and white peers. Therefore, although the Court insists that affirmative action must eventually end, the Court has washed its hands of the underlying opportunity gaps that lead institutions to rely on affirmative action.

In this Comment, I argue that much greater care and attention must be paid to the educational opportunity gaps and resulting achievement gaps that prompt many colleges and universities to rely on affirmative action. Increased attention to greater equality and excellence in elementary and secondary education can help reduce or eliminate the need for affirmative action, which is an approach that fundamentally aims to ensure equality. Without additional attention to closing opportunity gaps, the Court may declare that the time has come for affirmative action to end, but the United States will not be equipped to maintain diverse, selective postsecondary institutions and the many benefits that they bring.

Before presenting a long-term plan to close educational opportunity and achievement gaps, I explain how, in the near term, it is important to understand the impact that Fisher II will have on the ability of institutions to achieve diversity in their entering classes. In this regard, Fisher II offers some assistance to institutions that want to employ affirmative action, but also provides a cautionary tale about the demanding evidentiary burden that these institutions must carry to prevail. Thus, Fisher II should serve less as a cause for celebration and more as a call to action for those who need to prepare the evidentiary record and research that defending affirmative action will require.

Given the Court’s insistence on the importance of considering race-neutral alternatives, I also recommend that universities consider “educational disadvantage” as a race-neutral alternative in admissions. I first describe the educational disadvantages that confront many students, particularly minority and poor students. I contend that the Court should not end affirmative action in higher education until these educational disadvantages are eradicated. I then explore how institutions could consider educational disadvantage in ways that promote the educational benefits of diversity. As discussed below, research reveals that a variety of forms of educational disadvantage inflict greater harm on minority students. Universities could structure their recognition of educational disadvantage in admissions in ways that acknowledge the racial disparities in educational opportunity that cause the achievement gap, while considering the full scope of educational disadvantages in ways that prevent educational disadvantage from serving as a proxy for race.

I then present my long-term theory for how to close opportunity gaps by explaining the need for federal leadership for reform because of the ineffectiveness of state and local efforts. My theory builds on federal policymaking strengths, while also creating new forms of state and local control over education. My approach envisions the federal government serving as the ultimate guarantor of equal access to an excellent education. The federal government would partner with the states in ways that make achieving this essential national goal a reality. In addition, the Court should overturn Rodriguez to provide a uniform federal remedy for closing opportunity gaps. Collectively, these efforts can help to reduce reliance on affirmative action to address achievement gaps and prepare selective institutions for the eventual demise of affirmative action.

This Comment proceeds in three parts. Part I describes the admissions program at the University of Texas at Austin and summarizes the Fisher I and II opinions. Part I also analyzes how Fisher II may benefit universities that seek to consider an applicant’s race among many factors to assemble a diverse class. Part I examines how, at the same time, Fisher II may make it harder for universities that do so to withstand the Court’s demanding evidentiary burden. This Comment then turns to both a short- and long-term approach that can help institutions and the nation to prepare for the eventual demise of affirmative action. Part II describes the nature and breadth of the educational opportunity gap and contends that, in the short term, universities should consider educational disadvantage as a positive race-neutral factor that could assist institutions in assembling a diverse class. Turning to a longer-term solution, Part III analyzes how the federal government, including the Supreme Court, should take action that can close the elementary and secondary educational opportunity and achievement gaps in ways that can help institutions enroll diverse student bodies even after affirmative action ends

* Professor, University of Richmond School of Law. Many thanks for the thoughtful comments of Derek Black, Hank Chambers, Jim Gibson, Meredith Harbach, William Koski, Martha Minow, Eloise Pasachoff, James E. Ryan, Gerard Robinson, Robert Schapiro, and Kimberly West-Faulcon. I am grateful for Dean Wendy Perdue’s support of research assistance for this Comment, the thorough and careful research assistance of Victoria Linney, Katie Love, Judd Peverall, and Rachel Rubinstein, as well as the excellent library assistance of Joyce Manna Janto.