Why it does not matter whether Abigail Fisher would have gotten into the University of Texas in the absence of racial preferences

|The Volokh Conspiracy |

Some defenders of affirmative action suggest that the Fisher case challenging racial preferences at the University of Texas, is somehow improper because Abigail Fisher's grades and test scores were not good enough for her to be admitted even in the absence of preferences for black and Hispanic applicants. Even if this is true, it is legally irrelevant. The Fisher case is not about whether Abigail Fisher deserved to be admitted to the University of Texas, but about her constitutional right to a nondiscriminatory admissions process. It is not about how strong her application was, but about whether the University of Texas was justified in judging it by different standards than those used to evaluate black and Hispanic applicants.


The Supreme Court has never required plaintiffs challenging racially discriminatory policies under the Fourteenth Amendment to prove that they would have gotten some material benefit in the absence of the discrimination they were subjected to. As the Court put it in Grutter v. Bollinger, a well-known 2003 decision on affirmative action in higher education, "[w]henever the government treats any person unequally because of his or her race, that person has suffered an injury that falls squarely within the language and spirit of the Constitution's guarantee of equal protection." The Court was even clearer in the 1993 case of Northeastern Florida Chapter of Associated General Contractors v. City of Jacksonville, a challenge to racial set-asides in government contracting: "When the government erects a barrier that makes it more difficult for members of one [racial] group to obtain a benefit than it is for members of another group, a member of the former group seeking to challenge the barrier need not allege that he would have obtained the benefit but for the barrier in order to establish standing." Being subjected to an unconstitutional racially discriminatory process is a harm in itself, even if it cannot be proven that the discrimination was a decisive factor in denying the plaintiff admission to a state university, or some other government benefit.

There is good reason for this rule. In addition to recognizing the reality that unconstitutional racial discrimination by the state is harmful even aside from its material consequences, the Court's approach makes it possible to challenge racial discrimination in the many government policies where it is difficult or impossible to figure out who would have gotten the benefit in question absent discrimination. Even if Abigail Fisher had substantially higher grades and test scores than she actually did, there would still be no way to know for sure whether she would have been admitted in the absence of racial preferences. Like that of most other selective universities, UT's admissions policy takes account of a wide range of factors, and it is always possible she would still have been rejected (e.g., because other applicants with weaker academic records impressed admissions officers more with their extracurricular activities).

Liberals who believe that the courts should have required Fisher to prove that she would have gotten into UT absent affirmative action, should keep in mind that such a ruling would make it harder for blacks, Hispanics, and other minorities to challenge government policies that discriminate against them. For example, under current precedent, a minority criminal defendant who challenges the unconstitutional exclusion of blacks from his jury does not have to prove that the presence of more African-Americans on the jury would have led to an acquittal or a lesser sentence. It is enough to show that he (and the jurors) were subject to racial discrimination. The same goes for minorities challenging discrimination in education policy and the distribution of various other government benefits.

None of this proves that Abigail Fisher necessarily deserves to win her case. It only shows that her lawsuit should not have been thrown out of court merely because she cannot prove that she would have gotten in to the University of Texas in the absence of racial preferences for minorities. Both the lower courts and the Supreme Court were right to hear her case on the merits; indeed this is one of the few issues on which all the judges who considered the case, both conservative and liberal, have so far ruled the same way. A contrary ruling would not only have been a setback for Abigail Fisher, but for many others seeking to challenge racially discriminatory government policies.