The Supreme Court’s Affirmative Action Decision: Three Scenarios


The Supreme Court has a flair for the dramatic. But it’s not quite “Waiting for Godot.” We do know all the critical decisions people have been waiting for will be decided before the Court’s summer recess. Besides, those robes need to be dry-cleaned.

Since technically you don’t need to have a law degree to be a Supreme Court justice, here’s my sense of what will happen when SCOTUS rules on the Fisher v. University of Texas case, possibly as soon as this Thursday.


Abigail Fisher, the aggrieved rejected former college applicant wins her case. She gets a refund of her $100 application fee to the University of Texas.

More importantly, if Fisher wins, the ruling forces UT to end its use of race and sets a precedent for other schools to find another tool to create an acceptable version of “equity” in college admissions. Good for all those who have fought for colorblind policies. But not the best outcome for Asian Americans, other minorities, and society in general.


Fisher loses. Maybe the Supreme Court finds that she lacked standing. She just wasn’t a good plaintiff. She was rejected based on her grades when she applied in the first place. Or the Court splits 4-4, and the appeals court decision upholding the University of Texas admissions program is left standing. Grutter, the current affirmative action law, remains in place. Good, but unlikely, based on the tea leaves found in the SCOTUS cafeteria.

Still, today’s ruling against Arizona’s proof-of-citizenship requirement for voter registration produced a surprising 7-2 majority, with Justice Scalia joining traditional minority rights advocates.

Look out the window. Are pigs flying? Or are there bacon bits in the air? It could happen again by the end of the month.


Fisher gets a narrow win. The University of Texas is told its use of race is flawed and has to change its admissions program. Other colleges struggle to figure out what to do, even considering class-based policies. Affirmative action is cut back, but not eliminated. The least worst outcome, but still not great.

So what’s your view of the future of affirmative action?

If you’ve read my posts, you know where I stood before the oral argument, and after the hearing.

I was actually more open to considering a class-based affirmative action program, even before the New York Times‘s Bill Keller put up his white flag last week. When that new report came in on class, I thought about it for a second but realized class-based solutions don’t work.

Class-based solutions just don’t solve the racism part of the problem. They just sidestep and ignore it.

Racists don’t care how much money you have. They’re skin dependent.

Whatever is decided, I still hate how Asian Americans have continued to be dragged into this debate.

Just as Asian Americans were used to build the railroad in the 19th century, Fisher’s case was so weak, she had to rely on Asian Americans to build it.

I don’t know many Asian Americans who have benefited from affirmative action who would pull a Clarence Thomas and denounce it.

In fact, those of us who know what immense good affirmative action has done for society aren’t ready to be talked out of the best tool we have to achieve racial equity.

Emil Guillermo is an independent journalist/commentator.
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The views expressed in his blog do not necessarily represent AALDEF’s views or policies.
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