December 10, 2015

Reflections on Fisher v. University of Texas

On Wednesday, Dec. 9, the U.S. Supreme Court held oral arguments in a case that will determine the future of affirmative action in higher education.  

Along with the president and other chancellors of the University of California, I was a signatory on a Nov. 2 brief that urged the justices to allow public universities to take race into account in a limited way (with no quota system) when other methods failed to achieve our compelling educational interest in creating a diverse university community. We demonstrated that, after Proposition 209 passed in California in 1996 (banning the use of race in college admissions), UC campuses became less racially diverse, especially for African American students. Race-neutral initiatives attempted over the decades — including spending many hundreds of millions of dollars in outreach programs — have not been nearly as effective as modest affirmative action programs. 

It will be some time before the Court decides the case and a negative decision could have far-reaching effects. 

Four justices clearly support the limited use of affirmative action in college admissions, although one – Elena Kagan – recused herself from this case.  Four others clearly oppose it.

Justice Anthony Kennedy, who in the past has expressed strong skepticism about the constitutionality of using racial considerations under any circumstances, remains the swing vote. Some hoped he might support limited use of race in admissions, but unlike the promising signals he sent during oral arguments in same-sex marriage cases, Justice Kennedy gave no indication that he will come through with that support. 

And so we face the possibility that the U.S. Supreme Court will interpret the Constitution in a way that dramatically limits access for talented but structurally disadvantaged Americans to outstanding institutions of higher education.

Among the four justices who clearly oppose affirmative action is Justice Scalia, who, referencing an unidentified amicus brief, said some people contend that "it does not benefit African-Americans to get them into the University of Texas where they do not do well, as opposed to having them go to a less-advanced school, a less -- a slower-track school where they do well." That comment prompted the University of Texas’s attorney, Gregory Garre, a former Bush administration solicitor general, to respond, “I don’t think the solution to the problems with student-body diversity can be to set up a system in which not only are minorities going to separate schools, they’re going to inferior schools.”

This is exactly right. 

The challenge for American higher education is making the highest-quality university experience accessible to all talented and ambitious young people, regardless of background, and especially to ensure this access for those who have grown up facing systematic structural disadvantage and discrimination.  It is still too often the case today that elite American higher education exists mostly for the privileged.  For the good of the country, this has to change.

Many people do not realize that a majority of the Supreme Court has never accepted a justification for affirmative action based on arguments that focus on the imperatives of remedying past discrimination or overcoming existing structural inequalities and barriers.  Instead, for decades, a majority of the justices have supported affirmative action on the grounds that there is a relationship between the creation of a diverse learning community and the educational mission of colleges and universities.  This remains a compelling reason for some race-conscious admissions practices. 

However, when the Supreme Court first addressed this issue, in the Bakke case, Justice Thurgood Marshall – the first African American justice and a major figure in the decades-long battle to dismantle official legal segregation – reminded his colleagues that “during most of the past 200 years, the Constitution as interpreted by this Court did not prohibit the most ingenious and pervasive forms of discrimination against the Negro.” Now, “when a state acts to remedy the effects of that legacy of discrimination, I cannot believe that this same Constitution stands as a barrier.” 

Our campus was born at this moment in American history when the Constitution, which for so long had been used as an instrument of exclusion and discrimination, began to be interpreted in ways that promised a more inclusive Republic. The 1960s expansion of the campuses of the University of California reflected a commitment on the part of the people of our state, not just to hand out more college degrees, but make prestigious research universities accessible to all the people.   

President Lyndon B. Johnson affirmed that vision in his UCI campus dedication speech in 1964: “All our hopes for peace depend on the kind of society we can build in the United States. And that in turn rests on our system of education. … Help us demonstrate to the world that people of compassion and commitment can free their fellow citizens from the bonds of injustice, the prisons of poverty and the chains of ignorance. Help us open the doors of America’s abundance and freedom’s promise to every [person], whatever race, region or religion.”

For us at UCI it remains an incredibly inspirational founding story. And when we are recognized by (among many others) the New York Times for being the #1 university in the country combining academic excellence with access to all, regardless of economic background, we experience tremendous pride.

It would be wrong for the Court to interpret the Fourteenth Amendment’s Equal Protection Clause to prohibit even modest efforts to increase diversity for the benefit of our educational mission, or to remedy or counterbalance the ongoing legacies of past injustices.  After all, the same Congress that passed that amendment also created the Freedmen’s Bureau in what might be considered America’s first effort at affirmative action.

But regardless of the outcome, we remain committed to taking steps – consistent with the restrictions of Prop 209 -- that reflect our vision of a true opportunity society and a vision of scholarly excellence that is inclusive. 

Fiat Lux.

Chancellor Howard Gillman


To see a list of actions we have been taking the past few years to advance our commitment to inclusive excellence please go to

To see an engrossing debate on this topic, involving UCI Law School Dean Erwin Chemerinsky, go to