How the Abigail Fisher case highlights the difference between affirmative action in Canada and the U.S.

By Darren Thorne - Published on Jul 22, 2016
Abigail Fisher, second from right, who challenged the use of race in college admissions, listens as her lawyer Bert Rein, center, speaks with reporters outside the Supreme Court in Washington in 2015. (J. Scott Applewhite/ AP)



As the recent violence in the United States has made disturbingly clear, racial tensions remain fraught in the 21st century.  But as recent news reports concerning the practice of “resumé whitening” on both sides of the border illustrate, more subtle issues of equality continue to exist that both societies must find some way to address.

One such issue, though largely overshadowed by news about Brexit, emerged from the the U.S. Supreme Court recently. The court issued a momentous decision last month that protected the ability of American universities to enact affirmative action programs to bolster admission of visible minorities. For those in the legal community, the result came as a surprise, as a succession of conservative-leaning Supreme Courts have over the past 50 years narrowed the ability of universities to employ such measures. 

The case was a compelling one, in which the plaintiff Abigail Fisher — a white, would-be undergraduate student — had unsuccessfully applied for entry into the University of Texas. Though she would go on to study at another school, she sued the university, arguing she had been discriminated against. The school featured an affirmative action program that she believed resulted in her being denied entry in favour of visible-minority students. Though defeated at lower court levels, Fisher’s case eventually found its way to the Supreme Court, which issued its final decision in late June.

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Legal experts had widely thought Fisher v. University of Texas would sound the death knell for affirmative action admission initiatives in universities. Instead, the court upheld the University of Texas’s program by a 5-3 margin, holding it to be constitutional.

Fisher’s claim rested on an argument often raised against affirmative action policies: that due to the program giving priority to visible minorities, she lost out to supposedly less-qualified candidates. However, there turned out to be more to the story. The university’s admission policy didn’t simply set aside a number of places for minority students — in fact, such direct admission programs no longer exist in America, because the Supreme Court has previously declared them unconstitutional.

The school’s admission policy instead works like this: any Texas students who graduate in the top 10 per cent of their high school class are automatically offered admission. This accounts for approximately 80 per cent of the university’s incoming class. The remaining entrants are determined by subjecting applicants to a holistic review, which looks at a broad set of factors that includes grades, extracurricular activities, leadership and “special circumstances” such as consideration of socioeconomic status, whether one has been raised by a single parent, and race. 

Fisher fell into the second category of applicants. She challenged the school’s consideration of race in the holistic review when her application was rejected, noting that a total of five Hispanic and black students who had lower grades than she did had been admitted. While this was true, it turned out that 42 white students with lower grades than hers were also admitted under the program, and 168 black and Hispanic students with higher grades than hers were also denied entry under the holistic review.

Yet, in her suit, Fisher challenged only the holistic program’s inclusion of race, and neglected to mention the above details, or to note that the university’s program consistently admits more white students than ethnic minorities.

Given these facts, one might wonder why the court was widely expected to rule against the school, and declare its (and by extension, virtually any) university affirmative action entry initiative unconstitutional. The truth is, as with many issues of race in the U.S., academic affirmative action has proven to be a contentious flashpoint — one which conservative U.S. Supreme Courts have historically been deeply skeptical of and have aggressively sought to limit.

For example, in addition to outlawing direct placement programs, the court has previously also ruled that the only rationale under which other types of academic affirmative action programs are permissible is when such programs are aimed at furthering the diversity of views and experiences in the classroom. In other words, such programs cannot be instituted for the purpose of offsetting historic or ongoing disadvantage by certain groups.

It seems curious to view this rationale as the only acceptable one for educational affirmative action. While expanding the breadth of perspective in classrooms is certainly important, it is ironic that this conception of affirmative action’s value essentially seems to rest on the benefit it provides to non-minority students: students who, thanks to such programs, will be able to enjoy the enhanced range of perspectives brought by a diverse set of classmates. In other words, to the court, the value of affirmative action is apparently not in assisting a vulnerable minority, but rather ensuring that their classmates are able to benefit from their presence.

In recent cases the U.S. Supreme Court had seemed to be edging toward doing away with even this limited, holistic analysis form of educational affirmative action, to instead ensure that race not be considered at all in university applications. In the 2003 case Grutter v. Bollinger, for example, the court ultimately upheld the affirmative action program in question — while also making a point of declaring that it expected that within 25 years affirmative action would no longer be necessary. This sentiment was why the decision in Fisher proved a surprise when Justice Anthony Kennedy, the court’s conservative swing vote and an affirmative action skeptic, sided with three of the court’s more liberal justices to uphold the program and essentially save this limited form of affirmative action.  

It’s interesting to contrast all of this to the situation here in Canada, where these issues are seemingly less controversial. Though historically we have seen echoes of the same contentiousness — former Ontario premier Mike Harris, for example, successfully campaigned against the previous NDP government’s affirmative action policies, which he described (inaccurately) as ethnic and gender based “quotas.”  But, generally speaking, our debates over this issue do not seem nearly as intense as those seen in America. For example, last year’s decision to enforce gender parity in the federal cabinet was largely met with cheers or shrugs, rather than widespread outrage over “quotas for women” amongst the public.

Legally, these issues are also treated differently in Canada than in the U.S. The Fisher case essentially sought to outlaw affirmative action programs by arguing that government officials, including public universities, violate the rights of white Americans when they recognize racial inequities and consider race in a way that might assist minority groups. In Canada, similar legal arguments are doomed to fail because our Constitution includes explicit protection for affirmative action initiatives, meaning they cannot be challenged as “reverse racism.” Accordingly, academic affirmative action programs here haven’t had to be watered down to the point where they exist merely to promote a diversity of classroom views. Instead, our Constitution and Supreme Court have looked to protect vulnerable minorities directly and for its own sake, not just for the purpose of bettering the experience of others.

This may be a bridge too far for the U.S. Supreme Court, but to the surprise of many, as the result in Fisher indicates, they at least remain unwilling to do away with academic affirmative action altogether.

Darren Thorne is an international lawyer and adjunct law professor at Toronto’s Osgoode Hall Law School and the Universities of Pretoria and the Western Cape in South Africa.

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