Case Study 2: The Fisher Supreme Court Cases against the University of Texas at Austin

This chapter looks at the most recent case to challenge affirmative action in college admissions policies in the U.S. Supreme Court, the Fisher v. The University of Texas at Austin (2013 and 2016). Like chapter 5, the purpose of this chapter is to understand precisely what supporters and opponents are saying about the controversial policy. That is, how are they framing the debate surrounding affirmative action. However, this chapter looks at how framing may have changed over a decade later. We again focus on amicus briefs submitted by social authorities to the U.S. Supreme Court who had interests in the outcome of the cases. While we were interested in variation in types of frames used in these two cases (Fisher I and II) relative to the Gratz and Grutter cases, we mainly focused on authors continued use of both color-blind and group threat frames to state their positions. While some nuanced changes were observed from Gratz/Grutter to Fisher, our findings revealed a great deal of consistency from case to case and that the briefs continued to rely on color-blind and threat frames to characterize the policy. Particularly among opponents’ briefs, threat frames suggested that whites, in general, were losing in a country consumed by liberal agendas of diversification and entitlements only afforded to unqualified and ill-prepared non-whites.

Race, the Affirmative Action Debate, Education, and Past Court Cases

This chapter provides insights into the state of racial inequality in the US today, with a particular eye on income, wealth, jobs, and education disparities. Do these factors continue to be predicted by race? If they do not, then there really is no need to consider race when making policy at the national and state levels or in higher education. The discussions over affirmative action and how it should be implemented would be moot. This chapter also provides an examination of the impact of education in general and in particular for minorities. We look at how the elimination of affirmative action at the state level has affected enrollment of minorities in higher education. We then provide a look at the history of affirmative action related to higher education in the courts. As such, we offer a detailed synopsis of past court cases that have set the stage for how affirmative action is viewed and used in higher education today. In this light, we discuss the ever-present and surprisingly controversial notion of diversity and how it shapes the affirmative action landscape. We end the chapter by discussing our methodological and analytical strategies for the remaining portion of the book.

Affirmative Action and Higher Education

This chapter discusses the ever-evolving role of race in politics in the history of the US. How the government handled racial and other discrimination has not always been effective. It was not until the 1960s that the US government attempted to make a concrete effort to minimize racial discrimination, which of course effected enrollment at elite US colleges and universities. This chapter then goes onto to discuss the deep ideological divide over affirmative action that exists in the country and provides public opinion data on where whites stand with the subject. This chapter demonstrates that indeed affirmative action is a controversial subject that receives little support from whites.

Conclusions

The purpose of this chapter is to bring the discussion back to the broader ideas of the book: racism and framing by elite actors. This chapter discussed the insidious role of think tanks in enlisting Racialized Framing techniques (minimize race while also activating race through threat) to eliminate affirmative action from higher education and reproduce a system that benefits whites. This chapter returns to the idea that civil rights initiative in general are under attack by a few elite actors while support is found among diverse groups most affected by any changes to these policies. This chapter also highlights the broader problem with diversity initiatives within higher education and how they fail to eliminate the problems facing African Americans and other marginalized groups. In conclusion, the authors conclude that affirmative action is, in essence, dead because it has been stripped of its bite by past cases and because it now acts as a call-to-action for whites.

Who is Fighting the Fight?

The purpose of this chapter is to assess who are the actors leading the charge for and against affirmative action in the most recent U.S. Supreme Court cases on affirmative action in the 21st century. We are interested in the primary “lobbyist” of the Court during cases dealing with higher education and affirmative action (Gratz/Grutter and Fisher I and II) who make use of amicus briefs to make their cases for and against the policy. Amicus briefs are often described as “friends of the court” because they provide unique information to the court as well as elucidate broader social and political implications of the case's potential decision. However, scholars also argue that such briefs act to lobby the court for a specific resolution. While we look at all variation in authorship (e.g., individuals, civic organizations; universities, etc.), we pay particular attention to advocacy groups who have joined the fight for and against affirmative action in the public arena. Concerning opponents of affirmative action, scholars have stated that the backlash in the U.S. over policies and initiatives associated with the Civil Rights Movement has been led by elite-backed advocacy organizations, including special interest groups and think tanks.

Case Study 1: The Gratz and Grutter Supreme Court Cases against the University of Michigan

The purpose of this chapter is to understand arguments put forth by these social authorities (individuals and groups) in support and opposition to affirmative action within a prominent debate on affirmative action in higher education admissions. We are particularly interested in advocacy groups that have the ability and resources not afforded to most individuals to lobby the Supreme Court. We used the Gratz v. Bollinger et al. and Grutter v. Bollinger et al. U.S. Supreme Court cases as the site of the first case study. We look at how these entities deployed specific arguments and rhetoric within court documents to frame affirmative action to Supreme Court Justices. In particular, while all frames were considered, we look at two discursive frames prominent in the literature and how they were used by supporters and opponents of the policy: color-blind and threat frames. Findings demonstrate that while supporters often used color-blind arguments (and some threat as well), the opponent briefs were saturated with both color-blind frames.

Introduction

The attack on affirmative action has come from a select few individuals with resource. This fight was thought to have culminated with the end of affirmative action signaled by the Fisher v. University of Texas at Austin Supreme Court case. However, the policy received a surprising victory and continues to be an object of disdain by many conservatives today. With that being said, this chapter outlines the role of elite actors in framing prominent social issues, including affirmative action. This chapter also describes how certain frames may be used to not only minimize the discussion of race surrounding the policy but will also attempt to use threat and emotion to produce animosity in order to remove the policy from higher education.