The Future of Affirmative Action

Jenna Goldman '18

The American Constitution Society, the Black Law Students Association, and the Center for the Study of Race and Law hosted, “Fisher v. University of Texas and the Future of Affirmative Action” last Wednesday in Caplin Pavilion. The panel consisted of affirmative action law experts: Professors Douglas Laycock, George Rutherglen, Kim Forde-Mazrui, and Scott Ballenger, a partner at Latham & Watkins LLP who played a key role in Latham’s representation of both the University of Texas in the Fisher[1] case and the University of Michigan Law School in Grutter v. Bollinger.[2]

Photo courtesy

Photo courtesy

Speaking to a standing-room only crowd, professors and Mr. Ballenger addressed the implications of the Fisher decision and the future of affirmative action policies in the United States.

Professor Laycock began the discussion by outlining the progression of affirmative action cases starting with Regents of the University of California v. Bakke.[3] Deciding the case in 1978, Justice Powell wrote the opinion of a plurality that struck down race based quota systems in admissions but upheld the use of race as a factor in admissions.

Laycock went on to describe Justice O’Connor’s opinion in Grutter v. Bollinger,[4] which upheld the affirmative action policy at the University of Michigan Law School and affirmed that a race-conscious admissions process did not amount to a quota system. In the opinion, Justice O’Connor opined, “Twenty-five years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”[5]

 At issue in the Fisher case was the University of Texas’ “Top-Ten Percent Plan” which guarantees admission to the University of Texas system to the top ten percent of students graduating from each in-state high school. The remainder of students outside the top percentage of their class may be admitted through a process that considers a number of factors, including grades, extra curricular involvement, and race. The appellant, Abigail Fisher, a white student, alleged she was denied admission to the University of Texas at Austin based on her race in violation of the Equal Protection Clause of the Fourteenth Amendment.[6] During oral arguments in early 2016, the late Justice Scalia made the comment that “most of the black scientists in this country don’t come from schools like the University of Texas. They come from lesser schools where they do not feel that they’re –that they’re being pushed ahead in–in classes that are too fast for them.”[7]

The comment by Justice Scalia and the allegations by Ms. Fisher sparked the twitter hashtag “#StayMadAbby.” The hashtag was used by black students at UT and around the country to highlight their achievements in response to Justice Scalia’s comment and to bring attention to the fact that only four percent of students in UT’s 2015 freshman class were black.[8]

Professor Laycock went on to describe why race-neutral admissions policies do not fulfill the objective of diverse student bodies. He explained that institutions of higher education must rely on proxies for race and often have trouble including the most academically strong minority high school students because they slip through the framework. For example, admissions officials use geography as a proxy for race in Texas, looking closely to admit students from schools located in predominantly Hispanic neighborhoods. However, as Laycock points out, without the opportunity to take race into account, admissions are not able to identify minority students who go to competitive high schools in predominantly white areas.

Scott Ballenger, a 1996 graduate of UVa Law, said he kept an optimistic view of the outcome throughout the litigation. The case was heard “with the backdrop of Ferguson and the terrorist attack on the Emanuel AME Church by Dylann Roof,” Ballenger said, “and it was more than clear that the United States was far from the ‘race neutral’ utopia Justice O’Connor described in Grutter.”

The recusal of Justice Kagan and the death of Justice Scalia shook up the case, said Ballenger, and the team knew they would be relying on Justice Kennedy for a favorable decision, if they got one at all. Ballenger expected a 4-4 divide, so when they heard the decision was 4-3, with Justices Kennedy, Ginsburg, Breyer, and Sotomayor in the majority, Ballenger was elated. Kennedy’s opinion affirmed that the Top Ten Percent Plan was narrowly tailored to serve the compelling state interest of diversity in higher education.

For Ballenger, the case was “more about the dormitories than the classrooms,” and “the societal benefits of having diverse leadership.” He emphasized that a diverse campus served the educational goals of the students, the state, and the nation.

Ballenger says he remains optimistic, even into the Trump administration: “If the law changed today,” he said, “it seems unlikely that law schools and law firms will go back to ‘the way it was’ with no or very few women or people of color in their ranks. Clients insist on diverse teams, and increasing diversity in law firms to meet client demand is a continuous goal.”

Ballenger’s optimism was challenged by Professor Rutherglen, author of the recent article “Fisher II: Whose Burden, What Proof?”[9] Rutherglen saw the case in light of the implications it will have on civil procedure. He says that the Fisher case substantially shifts the burden of proof to the attacker of an affirmative action plan. “As a matter of constitutional doctrine, the law is very stable at the moment; how long the moment will last is the question.” Rutherglen lamented that a return of affirmative action to a Presidential agenda may reverse the recent progress.


[1] Fisher v. Univ. of Tex., 579 U.S. ___ (2016).

[2] Grutter v. Bollinger, 539 U.S. 306 (2003).

[3] Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978).

[4] Grutter, 539 U.S. 306.

[5] Id. at 343.

[6] Fisher v. Univ. of Tex., 570 U.S. ___, 2415 (2013).

[7] Transcript of Oral Argument at 67, Fisher, 579 U.S. (No. 14-981).

[8] Brian Feldman, ‘Stay Mad Abby’: Black College Graduates Ridicule SCOTUS Affirmative-Action Case, New York Magazine (Dec. 10, 2015),

[9] George Rutherglen, Fisher II: Whose Burden, What Proof?, 20 Green Bag 2d 19 (2016).