Thoughts on Fisher v. University of Texas

I have little to add to my previously posted on thoughts on Fisher v. University of Texas, the major affirmative action case that the Supreme Court is about to hear. But here are some links to earlier posts on the subject that might interest readers who follow the issue.

Here is my initial post about the Fifth Circuit decision that the Supreme Court is now likely to overrule.

In this post, I explained why the Fisher case poses a stark conflict between the “diversity” and compensatory justice rationales for affirmative action, and why the former is extremely dubious. I also highlighted the Texas affirmative action program’s dubious treatment of Asian-American applicants.

In February, I described my fear that the Fisher case could turn out to be a Pyrrhic victory for affirmative action opponents if the Court ends up invalidating all or most explicit affirmative action, but endorses “race-neutral” subterfuges such as the Texas Ten Percent Plan, which are often worse than traditional affirmative action. Such an outcome is also likely to reduce the transparency of affirmative action policies, for reasons I discussed here.

Most recently, I described why the originalist case for affirmative action is a lot weaker than proponents believe.

Overall, I think the Court should probably strike down the Texas plan. But I have serious concerns about the reasoning that it might adopt in reaching that conclusion. And I do not believe that it should categorically forbid all affirmative action policies, especially those genuinely aimed at compensating victims of past racial injustice.