The Fisher Decision: The National Association of Scholars Responds

Jun 24, 2016 |  NAS

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The Fisher Decision: The National Association of Scholars Responds

Jun 24, 2016 | 


On June 23, the U.S. Supreme Court handed down a four-to-three decision in Fisher v. University of Texas at Austin. The majority opinion, written by Justice Kennedy, gave the victory in the case to the University of Texas. The decision allows the university to continue to grant strong preference in admissions to minority students based on their race. 

The National Association of Scholars deeply regrets the Court’s final decision in this case, which has endured more than eight years of litigation. Along with many others, we had hoped the Court would at last hold the University of Texas to the standard of “strict scrutiny” for its use of racial classifications.  Instead, Justice Kennedy’s opinion cobbles together rationalizations, excuses, averted glances, circumventions, and just-so stories that add up to permitting the University of Texas to persist in racial discrimination among applicants. 

Racial Favoritism

Kennedy’s twenty-page opinion, also signed by Justices Ginsburg, Breyer, and Sotomayor, ends the case in which Abigail Fisher claimed that she was unjustly refused admission to the University.  Her complaint centered on the University’s practice of using racial preferences among its criteria for selecting students among those who were not automatically admitted under Texas’s so-called “Top Ten Percent Plan.” That plan grants students graduating in the top ten percent of each Texas high school class automatic admission to the state’s public universities. Fisher, who is white, finished high school just outside the top ten percent of her class. She then applied for regular admission. The University, however, used a system of racial favoritism to select among students in this category.

The U.S. Supreme Court has now certified that this system of favoritism passes muster with the Court’s previous rulings on when race can and cannot be used in distributing public benefits.  The Court’s “strict scrutiny” rule generally restricts the use of racial classifications to cases where there is a “compelling public interest” and where no less intrusive measure exists to achieve that interest.

The Make-Believe University

But there is no compelling public interest for the use of racial classifications or racial preferences in admissions at the University of Texas. And other means of increasing the numbers of black and Hispanic enrollees are easily at hand.  Because these facts are plain, Justice Kennedy and his majority colleagues enrolled themselves in a make-believe university where:

  • The university employs racial preferences not for the sake of increasing black and Hispanic enrollment but to obtain “the educational benefits that flow from student body diversity.”
  • The university does not employ numerical quotas, but seeks to maximize “diversity.”
  • The university does not have “elusory or amorphous” goals in its racial preference policy, but has “articulated concrete and precise goals,” these being:
    • Ending stereotypes
    • Promoting “cross-racial understanding”
    • Preparing students for “an increasingly diverse workforce and society”
    • Cultivating leaders with “legitimacy in the eyes of the citizenry”
  • The university adopted so-called “holistic review” not to evade accountability for using race in admissions but because none of the “alternatives was a workable means of attaining the University’s educational goals.”

Outside the make-believe of the Supreme Court’s sorry record of jurisprudence on race in college admissions, these claims are sheer nonsense. The University of Texas uses race in college admissions simply for the advantages that racial politics provides.

In the case of the University of Texas, the state’s Top Ten Percent Plan fully ensures that minority students comprise a proportionate percentage of enrollees. The University of Texas puts additional racial preferences into play for reasons that it has consistently obfuscated.  As Justice Alito wrote in his dissent to the majority opinion, “The University still has not identified with any degree of specificity the interests that its use of race and ethnicity is supposed to serve.”  At times the University simply recited its mantra, “diversity,” and asked for the Court to defer to the University’s own judgment on the matter. At other times it said it needed more minority students to ensure that there was “diversity” in each and every class.  And on one occasion, the University complained that the Top Ten Percent Plan failed to deliver the right kind of black and Hispanic students, “the African-American or Hispanic child of successful professionals in Dallas.”   


Justice Alito’s powerful 51-page dissent disposes of most of the nonsense crowded into Justice Kennedy’s majority opinion. It typically takes more pages to refute error than it does to make the error in the first place. But in this case, we also have Justice Thomas’s one-page concurrence with the Alito dissent in which Thomas drives straight to the point that the state’s use of race in higher education “is categorically prohibited by the Equal Protection Clause.”

What do those of us who agree with Justice Thomas and who find Justice Alito’s dissent to be compelling statements of principle and law do now in the wake of this egregious Supreme Court decision?

Kennedy’s Equivocations

One option is to read Justice Kennedy’s decision for whatever glints of hope can be discerned in it. There is a glint, for example, in the majority’s recognition that the University of Texas’s program is “sui generis.”  If the Texas program is one-of-a-kind, then perhaps the Fisher decision will not be an open-sesame for other colleges and universities to ramp up even bigger racial preference programs. The majority also admits that the circumstances of the case made it impossible for the Court to weigh the evidentiary record of how the Top Ten Percent Plan affects race in admissions.  The case, said the majority, was “litigated on a somewhat artificial basis” which “may limit its value for prospective guidance.”

That could be Justice Kennedy’s signal that Justices Ginsburg, Breyer, and Sotomayor cannot rely on him for a promiscuous endorsement of racial preferences in future cases. 

The Grutter Legacy

But that said, those who believe that racial preferences are indeed prohibited by the Equal Protection Clause would be best advised to turn away from Supreme Court litigation as a plausible path for restoring that principle. Ever since the 1978 opinion by Justice Powell in the Bakke decision, the nation’s highest court has acted capriciously on matters of race and education. The doctrine of “diversity,” given its current form by Justice O’Connor in her 2003 decision in Grutter, is the cornerstone of the Court’s make-believe castle of race. Grutter pretends that colleges and universities employ racial preferences for the educational and intellectual benefit of all students, but even the staunchest supporters of those preferences freely admit that “diversity” is just a cumbersome way to get what they really want: a racial spoils system.

We are in a historical moment in which the academic and political left is feeling empowered. It has accordingly amplified its demands and backed them, in many cases, with mass protest.The Fisher decision almost certainly will add to the intensity of these demands. 

The Legislative Alternative

The answer is not litigation. It is legislation. Opponents of racial preferences need to pursue the tactics used in Arizona, California, Michigan, Nebraska, Oklahoma, and Washington, which have either by actions in their state legislatures or by popular referenda made it illegal for colleges and universities to employ racial preferences.

These successful state efforts are never the end of the matter.  The pro-preference forces fight back in court and in the culture. Thus we also must have the will and the resources for the ensuing litigation, and we must also have the clarity of principle and force of argument to persuade Americans at large that we are a nation that should strive to treat every individual as equal before the law.  

Justice Kennedy’s decision in the Fisher case deserves to be held up to ridicule and, rightly, should cost the Court much of its remaining credibility on these issues. Those of us committed to a just and colorblind system of Constitutional law will now have to turn our attention to other avenues of peaceful social, political, and legal change.

Illiberal Education

At root the problem is American education, which has become thoroughly dominated by the illiberal thought-world in which social outcomes always trump universal principles. That’s where the battle has been lost. The National Association of Scholars is among the few bodies left that can credibly challenge the default assumptions of the left on these matters. That is the particular role NAS will play in the months and years ahead.   

Free Minds

The National Association of Scholars has opposed the use of racial preferences in higher education since our beginning in the 1980s.  Because such preferences subordinate the individual to a group identity, they undermine liberal education, which aims to cultivate individual character, and which can only thrive by treating all those who aspire to knowledge as equally welcome to try their best. The ascent is steep. Higher education generally and the liberal arts in particular are, rightly understood, endeavors that judge performance according to demanding standards of excellence.  But while there is tough-mindedness in those standards, there is no room for bias or prejudice.  Each individual’s performance must be judged on its merits. Liberal education is meant to free our minds from the particular circumstances of birth and upbringing, and those circumstances ought to have no bearing on who is admitted to higher education, or how those who are admitted advance toward the goals of higher learning.

The Diversity Doctrine

Racial preferences had been introduced to college admissions more than two decades before the legalistic artifice of “diversity” was introduced—in the 1978 Supreme Court Bakke decision—as a rationalization for considering the race of applicants. In the years that followed, “diversity” leaped from its role as a somewhat esoteric legal claim to become a much larger cultural ideal for many Americans. The word now encodes an attitude that racial, ethnic, and some social differences connected with a history of oppression should be treated as reasons for lowering standards that would otherwise apply to all comers.  The “diversity” doctrine has pernicious consequences in many contexts of American life, but it remains in its origins and primary applications an attack on the principle of colorblind, racially-neutral standards in higher education.

The Supreme Court typically invokes the diversity doctrine when it addresses questions of fairness in college admissions. But it is important to acknowledge that in their zealous pursuit of “diversity,” colleges and universities do not limit the principle of compensatory privilege merely to the admission of applicants. “Diversity” is an acid that also dissolves general education standards; the coherence of the curriculum; grading practices; reading assignments; book choices; residential arrangements; the organization of extra-curricular student life; faculty searches; appointments; promotions; tenure decisions; administrative appointments; the expansion of university bureaucracies; legal strategies; fundraising; scholarships; sports; and more. It is hard to find any important aspect of colleges and universities that has not been changed for the worse by the political drive to embed racial preferences in what would otherwise be activities pursued on neutral grounds.

It is, however, the quality of liberal education that suffers the most from the conjoined doctrines of racial preference and diversity. The National Association of Scholars upholds the standards of a liberal arts education that fosters intellectual freedom, searches for the truth, and promotes virtuous citizenship. All three of these ideals are compromised by the effort to turn racial and ethnic identity into a superordinate value. Intellectual freedom is forced to defer to claims based on group identity. The pursuit of truth gives way to the pursuit of power, often in the name of “social justice.”  Preparation for virtuous citizenship is replaced by cultural relativism that emphasizes the disparate and incommensurate values of various subgroups.    

NAS’s Special Role

Education is not all that is at stake in our society’s willingness to take aboard a regime of racial preferences and the accompanying “diversity” doctrine.  There are other important legal and Constitutional principles at stake and legitimate concerns about the fabric of American society that provide good reasons to oppose racial preferences.  But NAS brings to this discussion a well-honed understanding of the primary problem. The Court has handed down a decision in which policy masquerades as law. 

We understand this tactic and have documented it in our three decades of careful examination of how the political left has subverted and diminished American education. The ultimately successful effort to pass a ballot initiative in California—Proposition 209 in 1996—began with the efforts of NAS members, who wrote the text. We know from that struggle and many others how colleges and universities fight desperately hard both to employ racial preferences, to hide what they are doing from the general public, and to avoid any accountability for the terrible consequences of those preferences.  The effort to distract the public from the results of “academic mismatch” continues to this day, and NAS members are on the forefront of efforts to shine light on these matters.

We are effective because we bring to this a true understanding of how that policy damages the liberal arts. We also bring the experience, testimony, and insight of thousands of academics who know firsthand what the “diversity” doctrine does to liberal education, and how our colleges and universities will act on this decision far beyond its supposedly limited application to the University of Texas at Austin. The NAS also brings the power of research reports such as What Does Bowdoin Teach? which go deep within the institutional structures as well as the lived experiences of colleges that commit themselves to the pursuit of “diversity.” 

In all these ways, the National Association of Scholars expects to play a significant role in developing effective new steps to the ongoing fight to bring race-neutral principles to higher education in the post- Fisher world. The Fisher decision is a setback, but it is by no means the end of the story.  We continue the effort to restore American higher education to its higher and better principles, knowing that we can anticipate little help and frequent hindrance from the nation’s legal and political elites—but knowing as well that we can call on the wisdom of many of the nation’s finest scholars and the support of very large numbers of ordinary citizens.

Image: Pexels

Sylvia Wasson

| June 25, 2016 - 7:51 PM

When nonsense masquerades as wisdom on the highest court of the land, our nation’s citizenry inhabits an Orwellian landscape. The latest decision in Fisher v. University of Texas at Austin is solid proof thereof.

This ruling further degrades an already debased “higher” education in America. That being said, the NAS has been a formidable opponent of the pro-preference forces for years—as exemplified by Dr. Wood’s superb dissection of the Make-believe University that Justice Kennedy and the majority have created to justify their fraudulent ruling.

This is indeed not the last word on this subject. I ask every educator to join the NAS—an organization worthy, unlike any other, of our admiration, support, and financial contributions in this battle for the very soul of the American academy.


| July 01, 2016 - 5:35 PM

However it may be in other states, California’s legislation (Proposition 209), though unrepealed and surviving three court challenges so far, has been evaded. Exactly how much so is, of course, unknown.

The evasion will grow. Cheating college administrators suffer no penalties.

Of course the legislation is much better than nothing. But something stronger is needed just to stay even.


| October 22, 2016 - 5:52 PM

Thank you for this analysis. I’ve long admired Justice Kennedy, who has never upheld race preferences before, and in fact wrote a devastating dissent in Grutter. But the Fisher ruling was a surprise and disappointment. As you say, however, Kennedy identified the case as having a unique set of facts, and so the ruling is of limited value as a precedent. 

To speak to another aspect of your analysis, I am a tenured social sciences prof at a public university in one of the states you list as having ended (or tried to end) race and gender preferences in public education admissions and hiring by state constitutional amendment. In several years at this institution, and notwithstanding this feature of our law, I can only describe its culture - at every level, from my department and college to the Chancellor’s office - as one of utter contempt for the civil rights laws’ command of race and gender nondiscrimination against any person. In the spirit of Gandhi’s principle of nonviolent noncooperation with injustice, I had no choice but to resign as chair of a faculty search committee when it became clear that my department and college were bound and determined that no male, and especially no white male, was going to get this job, even though we were too cowardly to be honest about that in the job listing. I’ll retire in a few years, and as much as I still love teaching and helping young people find their way - no matter their race or gender - I look forward to never having to deal with the nasty academic politics of race and gender again. I don’t understand, and find it impossible to respect, people who deny to others rights - i.e., to nondiscrimination based on a person’s race or gender - that they greatly value and strongly assert for themselves.

Keep up the good work, NAS.


| October 23, 2016 - 1:02 AM

“I don’t understand, and find it impossible to respect, people who deny to others rights.” Michael (supra).

Please forgive the observation, but what is there to understand? What sort of social science have you been studying your whole career that leaves you nonplussed at garden-variety identity-politics bullying? Did not the Germans, Italians, and Japanese teach the world a master class in the subject only eight decades ago?

Ashley Thornw

| October 24, 2016 - 8:52 AM

Michael, thank you for sharing your story, and for the encouragement.

- Ashley Thorne, NAS


| October 24, 2016 - 7:21 PM

First, thanks Ashley, and you’re welcome.

Roberto, thanks for the history lesson. As it happens, I’ve heard of the holocaust. Your point, however, escapes me, particularly since you don’t cite my full quote. It seems that you may actually be sympathetic to my view, but think that I’m insufficiently cynical. If so, guilty as charged. While I think it inevitable and even natural that humans get more cynical with age, and I’m no exception, if I ever lose all faith in people I’ll have to get out of teaching.

So, what I wrote was that I don’t understand those who deny to others RIGHTS THEY FIERCELY CLAIM FOR THEMSELVES, like racial nondiscrimination, when this is pointed out to them. They seem to deny the force of the social contract and golden rule, on which we’ve all relied at many points in our lives. And to the extent that this was true of Germans and Italians in the 1930’s, I don’t understand them either.


| October 25, 2016 - 1:06 AM

Michael, thanks for getting back to me. Four quick points.

(1) “Roberto, thanks for the history lesson. As it happens, I’ve heard of the holocaust.”

Don’t mention it. I was sure you would get the reference.

(2) “It seems,” perfectly correctly, “that you may actually be sympathetic to my view, but think that I’m insufficiently cynical.”

Insufficiently skeptical, perhaps. A cynic, as opposed to a skeptic, would say something like, “Identity-politics thuggery? Even the Holocaust? So what? What do I care?” I would never urge such a view.

(3) “If I ever lose all faith in people I’ll have to get out of teaching.”

I had supposed that as a social scientist you value not faith but evidence in people, but please yourself. Also, I had thought your plan is to do exactly that “in a few years.”

(4) “Your point, however, escapes me, particularly since you don’t cite my full quote. ... So, what I wrote was that I don’t understand those who deny to others RIGHTS THEY FIERCELY CLAIM FOR THEMSELVES, like racial nondiscrimination, when this is pointed out to them. They seem to deny the force of the social contract and golden rule, on which we’ve all relied at many points in our lives. And to the extent that this was true of Germans and Italians in the 1930’s, I don’t understand them either.”

I am grateful to you for the correction, and the complete quote. Yes, it was true of the Germans and Italians, not forgetting the Japanese. And in this context, let me repeat my non-rhetorical, not-by-intention-snarky question: What sort of social science have you been studying your whole career that leaves you nonplussed at garden-variety identity-politics bullying?