It’s alliterative, sure, but the truth is nothing could be further from the truth. And representing it that way ignores the thoughtfulness behind the initiative.

Yesterday, amidst a flurry of decisions, SCOTUS released one of the few decisive decisions of the day in Fisher v. University of Texas at Austin. The court ruled 4-3 (Justice Elena Kagan recused herself for prior work on the case as United States solicitor general) in favor of the university, rejecting the challenge to race-conscious admissions programs at UT Austin. Very quickly disgruntled folks took to Twitter to share their disappointment that the high court had permitted discrimination, “so long as it’s against white people.” But affirmative action is actually a fairly nuanced line for the law to walk, and the truth is, it has very little to do with white people at all.

As Marina Watanabe explained on her Youtube channel, affirmative action has deep roots, both in conflicts it addresses and past solutions it’s presented:

The GI Bill and the Federal Housing Administration were arguably some of the largest affirmative action programs in US history, but they aren’t perceived that way in retrospect largely because they predominantly benefited White Americans.

When programs and policies largely benefit White people, they generally aren’t considered affirmative action, much like the way financial aid and tax breaks received by middle and upper-class people aren’t perceived as welfare. Because of the GI Bill and the FHA, masses of White veterans were able to buy houses, start their own businesses, and gain access to higher education, which up until that point had been a luxury afforded only to a few upper-class elites.

Far out as it may seem, these policies—some in the “distant past” and some relatively recent—created a long narrative of racism that helped to elevate White Americans while denying many privileges to people of color. Even with programs like the GI Bill and the FHA, numerous obstacles were in place to prevent veterans of color from receiving benefits. Segregation, GI Bill ineligibility, and redlining are just three of the many factors that often contributed to keeping people of color and their communities at a disadvantage.

Reports commonly find that if a student’s parents went to college the student is more likely to attend college. With the difference between the GI Bill and the FHA enactment being only a couple of generations, there hasn’t been a whole lot of time for past issues to be fully worked out of the system yet.

And so the philosophy of affirmative action was born: Since its first enforcement by President Lyndon Johnson, the goal has been to seek “not just equality as a right and a theory, but equality as a fact and as a result.” That meant that both people of color and women, in theory, saw wider avenues of opportunity from areas they had previously been excluded from. Over the next few decades courts wrestled with where to draw the line on affirmative action. Until Fisher, the Supreme Court’s stance was essentially that it was interested in maintaining “a compelling interest in obtaining the educational benefits that flow from a diverse student body” while not relying on a point or ration-based system.

As indefinite as that seems, the Supreme Court has shown that it is not without its checks and balances. They’re nebulous, to be sure, which can leave plenty of room for diverging legal interpretations, but the system is at least attempting to account for them.

Photo Credit: hanlinyang92 cc
Photo Credit: hanlinyang92 cc

In 2013, when the Supreme Court first issued its opinion in Fisher and remanded the case down to the Fifth Circuit, they were careful to note that the issue did not permit quotas or predetermined percentages of minority admissions. In what many saw as a punt, their decision was fairly narrow; only instructing the Fifth Circuit were to make sure the court gave “close analysis to the evidence in how the process works in practice.” Even this time on appeal, after Abigail Fisher claimed her case was not given enough scrutiny, the Supreme Court prudently wrote that while this decision supported affirmative action programs, not all cases are the same.

“The Court’s affirmance of the University’s admissions policy today does not necessarily mean the University may rely on that same policy without refinement. It is the University’s ongoing obligation to engage in constant deliberation and continued reflection regarding its admission policies,” wrote Justice Anthony Kennedy for the majority, joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor.

Which is to say that weighing a student’s gender or race above all else would not fly in the eyes of the law. Fisher’s claim that she was passed over in favor of strictly diversifying the pool of admitted students (a claim which has been debunked) is not the sort of practice that would work. But as a “factor of a factor of a factor,” taken in conjunction with competitive grades and scores is doable.

The truth is, this law and its variations are built on years of growing from “colorblindness,” which disregards the variation in playing fields students are coming from. Not only does Fisher affirm for educational institutes the parameters to build affirmative action programs within, but it reinforces the importance diversity creates for all students, not just those who have been marginalized. The standard is now set: You have to prove the affirmative action policy isn’t well thought out or useful, or that your race is the only reason you were denied. 

“Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission,” said Kennedy in his opinion. “But still, it remains an enduring challenge to our Nation’s education system to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity.”