“My own view is that color-blind admissions policies come several centuries too late and at least a generation too early,” law professor Deborah Rhode told a Stanford audience, making an ethics-based argument for affirmative action. In the current case Fisher v. University of Texas, the U.S. Supreme Court will soon make a decision that could end or dramatically remake race-based affirmative action admissions at universities, including Stanford. According to legal counsel Tom Fenner, the swing vote “is likely to be Stanford alum Anthony Kennedy.” 

On Wednesday, a panel of Stanford scholars and legal experts gathered at the Black Community Center to discuss Fisher v. University of Texas and its profound ramifications. Depending on the court's ruling, universities like Stanford might be significantly restricted in their ability to take applicants' race into account in admissions decisions. Such a result, the panelists argued, would have serious consequences for social equity and diversity at Stanford.  The panel consisted of legal scholar Deborah Rhode, historian Allyson Hobbs, and legal counsel Tom Fenner.

“My own view is that color-blind admissions policies come several centuries too late and at least a generation too early.”

Fisher v. University of Texas puts on trial a 2003 precedent that confirmed a limited role for racial considerations in admissions decisions. Although prohibiting universities from using racial quotas, the 2003 decision allows consideration of race as part of a holistic process that includes other factors such as student leadership and family background. Supporters of the University of Texas' current policies argue that removing race from the consideration of applications will not create a better meritocracy but will almost certainly result in a rise in white and Asian representation and a drop in the representation of other student groups, especially black and Latino students. Opponents of affirmative action counter that universities should be challenged to come up with race-blind ways to sustain a diverse student population. 

The case and its key players

Plaintiff Abigail Fisher sued the University of Texas at Austin, or UT Austin, after she was denied admission in 2008. UT Austin follows a Texas legislature-mandated admissions policy of granting automatic acceptance to the top 10 percent of students who graduate from Texas high schools. Over three-quarters of current UT Austin students were admitted through this practice. In the top 12 percent of her class, Fisher was ineligible for automatic acceptance, and she was also denied admission in a supplementary process that took race into consideration, along with other factors such as student leadership and family background. 

Fisher’s legal team has argued that UT Austin’s “Top Ten Percent Plan” has created a sufficiently diverse student body, negating any further need for considerations of race. UT Austin and other universities, including Stanford, disagree. If prohibited from considering race, Fenner explained, Stanford might adopt best practices implemented by other schools already barred from considering race by laws such as California's Proposition 209. However, he added, those schools have not been very successful at sustaining “the educational benefits from having a racially diverse student body.”

Excluded ethics

The panelists addressed issues of social justice and discrimination largely absent from the court case itself. In 1978, the Court rejected the idea that correcting historical injustices justified affirmative action, accepting only the argument that diversity provides educational benefits for all students.  As a result of this decision, UT Austin has been left to justify its admissions policies by arguing that consideration of race is necessary to achieve a “critical mass” of students from diverse racial and ethnic backgrounds—and to achieve the educational benefits that flow from having a diverse student body. The inability of UT Austin to pin down a definition for critical mass, opponents say, is a weak link in the university's case.  

In addition to educational benefits, Rhode and Hobbs emphasized the ethics behind racial considerations. “While preferential admissions criteria in universities are only a small part of the solution,” Rhode said, “they are an extremely necessary one if we are to overcome the history of racial segregation and subordination in this nation.”  Rhode also cited research compiled in the amicus briefs filed on behalf of racial preferences, arguing that minority applicants admitted through affirmative action do at least as well as others, according to various measures of academic and career success. Hobbs agreed, saying that test scores alone are not an objective or fair measurement of a candidate’s merit. 

According to Hobbs, ending affirmative action could effectively “screen out” individuals  with diverse skills who would contribute to workplaces or schools. It would also reinforce a history of partial citizenship by limiting access to high-level work for which a college degree is required. “History matters,” Hobbs said, “and history casts a particularly long shadow over the University of Texas.”  Affirmative action is necessary, Hobbs argued, in order for society to take responsibility for the effects of long-term exclusion. Hobbs emphasized the long history of discriminatory government policies and exclusion from or limited access to certain federal programs, at times achieved by Southern congressmen to ensure local control over federal dollars to reinforce Jim Crow. The GI Bill, for example, helped widen the racial gap as white veterans used federal money to pay for college, while discrimination in college admissions kept tens of thousands of black veterans out of school. After Brown v. Board of Education, the University of Texas banned black students from residences and sports. Hobbs also cited recent incidents that demonstrate ongoing racial bias and inequality at UT Austin.

Affirmative action at Stanford

The Court may issue a narrow decision applying only to UT Austin’s admissions policies. Or, it may pass a more sweeping judgment. Fenner, who appeared on the panel as an individual lawyer and was careful to emphasize that he was not speaking as a university representative, walked the audience through several possible outcomes for Stanford. Depending on whether the court upholds UT’s admissions process, invalidates all consideration of race, or falls somewhere in between, Stanford admissions staff could have “a busy summer” scrambling to change policy before the admissions cycle begins again in the fall of 2013.

A consistent supporter of affirmative action, Stanford filed an amicus brief in the case pointing out that “race neutral alternatives” such as admitting all applicants in the top ten percent at their high schools would not work for highly selective institutions, and have not yielded racial and ethnic diversity at other institutions. Stanford integrates race as one factor among many, attempting to generate the educational benefits of a student body that is diverse in multiple ways.

Rhode ended the panel discussion by supporting the ethical importance of affirmative action in the face of resistance. “People won’t like this,” just as they did not like desegregation, she argued, but the Civil Rights Movement showed “you can change patterns through legal requirements.” 

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“The Future of Affirmative Action: Fisher v. University of Texas” panel discussion featured law professor Deborah Rhode, assistant professor of history Allyson Hobbs, and Stanford Deputy General Counsel Tom Fenner. The event was hosted by the Faculty Women's Forum and was introduced by Patricia P. Jones, the Dr. Nancy Chang Professor in the department of biology. The Office of the Vice Provost for Faculty Development and Diversity and the Clayman Institute sponsored the event. Co-sponsors included African & African American Studies, El Centro Chicano, Stanford Engineering Diversity Programs, Stanford Center on the Legal Profession, the School of Education, Black Community Services Center, Women's Community Center, Program in Feminist Studies, Stanford Diversity & Access Office, Center for Comparative Studies in Race and Ethnicity, Vice Provost for Graduate Education, and the American Studies Program.

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Deborah L. Rhode is Director of Stanford Center on the Legal Profession. She is one of the country’s leading scholars in the fields of legal ethics and gender, law, and public policy. Rhode is the author of more than 20 books. She was the Barbara D. Finberg Director of the Clayman Institute from 1986 to 1990 as well as a 2012-2011 Clayman Institute Faculty Research Fellow.

Allyson Hobbs is assistant professor of American history at Stanford. Hobbs, who graduated magna cum laude from Harvard University and received a Ph.D. from the University of Chicago, researches American social and cultural history, racial mixture, identity formation, migration and urbanization, and the intersections of race, class and gender. She was a 2011-2012 Clayman Institute Faculty Research Fellow.

Tom Fenner joined Stanford’s Office of the General Counsel in 1985, and became Deputy General Counsel in 2001. In his practice, Fenner focuses on the academic areas of the university, including faculty, student, research, and policy matters. He earned his B.A. and J.D from Stanford University. Fenner appeared on the panel as an individual, not as a university representative.

Annelise Heinz is a Ph.D. Candidate in the department of history, focusing on the intersections of race, gender, and sexuality in American and transpacific history. She is a member of the Clayman Institute Student Writing Team.