Harvard Educational Review
  1. Fall 2013 Issue »

    After Fisher v. University of Texas

    Implications for Education Research, Theory, and Practice

    From the Editors
    The United States Supreme Court issued its decision in Fisher v. University of Texas (2013) this past June, marking the fourth time in ten years that the Court has ruled on the constitutionality of race-conscious affirmative action policies in public education. Leading up to the decision, many legal scholars and civil rights advocates felt that the only reason the Court would hear such a case would be to reverse the position it had established in Grutter v. Bollinger (2003), that public institutions of higher education could use race as part of a holistic admissions policy—where race is considered as one factor among others—to achieve on-campus diversity. In the period between Grutter and Fisher, the Court disallowed K–12 school districts from using student race in school assignments in Parents Involved in Community School v. Seattle School District No. 1 (2007), and some observers expected a similar outcome from Fisher. Ultimately, the Court did indeed change its position, but not in a way that many expected.

    In a surprising 7–1 decision, the Court affirmed the importance of the value of diversity in higher education and the interest of public higher institutions to promote it, but returned the case to the New Orleans–based Fifth Circuit Court of Appeals to readdress whether the use of race in the University of Texas’s admission policy met strict scrutiny standards of “necessity” and “narrow tailoring.” Thus, Fisher settles the discussion on the value of on-campus diversity, but does not end the long-standing debate over the merits of race-conscious affirmative action in higher education. Still, the decision signals an important historic shift: rather than considering the value of diversity itself, the Court now turns to considering the means by which diversity is promoted.

    This moment is in no small part due to the transformative work done by social scientists in our field who have set out to prove the multiple values of diversity in higher education. For example, in 2002 the Harvard Educational Review published “Diversity and Higher Education: Theory and Impact on Educational Outcomes” by Patricia Gurin, Eric L. Dey, Sylvia Hurtado, and Gerald Gurin. This article drew from cognitive development and social psychology literatures and methods to articulate that on-campus diversity has multiple educational purposes and benefits for higher education institutions. Gurin et al. helped push forward a concerted effort among higher education scholars to conduct rigorous transdisciplinary, multimethodological studies on this important topic. In another example of the cumulative nature of this work, Uma Jayakumar’s 2008 HER article “Can Higher Education Meet the Needs of an Increasingly Diverse and Global Society? Campus Diversity and Cross-Cultural Workforce Competencies” examined Gurin et al.’s theory on the benefits of diversity. Using structural equation modeling, Jayakumar showed that colleges’ promotion of a positive racial climate through racially diverse student bodies has long-term benefits for white students and for the greater workforce. Both of these articles—as well as the larger research project in which they are situated—featured prominently in the arguments made by the University of Texas and its supporters in Fisher. The Supreme Court’s affirmation of the value of diversity in higher education is a testament to the importance of social science research in bringing about this reality.

    Looking to the post-Fisher future, however, our work is far from over. A new challenge for education social science will center on the specific necessity and narrow tailoring of affirmative action (Fisher, 2013). This means that universities using race-conscious affirmative action policies will have to essentially demonstrate that said policies and only said policies allow them to attain their diversity goals. As the Fisher case returns to the Fifth Circuit Court of Appeals, the UT-Austin will have to demonstrate that its admissions process meets this standard. This is a significant challenge given that some have suggested that race-neutral policies may be more ideal to achieve diversity aims (Rostron, 2013; Sander & Taylor, 2012). However, in her dissent, Justice Ginsburg rightly pointed out that, despite its race-neutral label, Texas’s “Top 10% Rule”—which guarantees admission to the University of Texas to any high school senior graduating in the top 10 percent of his or her class—explicitly relies on enduring racial segregation in housing and schools to allocate the overwhelming majority of UT-Austin seats. As she wrote, “Only an ostrich could regard the supposedly neutral alternatives as race unconscious” (Fisher, 2013). Justice Ginsburg’s dissent, however, is not the Court’s ruling, and it will be up to state universities to demonstrate through evidence that their specific affirmative action policies are the best and sole means available for achieving diversity goals.

    The Harvard Educational Review views the Fisher (2013) decision as a call to action for students, educators, scholars, and policy makers to continue producing rigorous and compelling work conveying and debating—from various disciplines and perspectives—the merits of race-conscious affirmative action in higher education, research that both breaks new ground and builds on the work of others. We wonder what Fisher teaches us about the limits of race neutrality as a guiding framework for addressing racial inequality. We are deeply concerned about an emerging catch-22: that some students of color who, as a by-product of poor funding and strained resources in racially segregated schools, have not been afforded equal educational opportunity should be deemed unprepared for elite education by the same structures that systematically unprepared them.

    We are also eager to deepen and complicate the discussion about race-conscious and race-neutral alternatives to promote diversity. What does it mean to substitute class for race for analytic purposes or policy considerations? Given the profound symbiosis among education, race, and law, we seek normative, anecdotal, and empirical explorations of what affirmative action and the Fisher ruling mean for how we teach and learn in schools, how we evaluate and make policy in the United States and abroad, and how we understand and affect the lived experiences of students. Embedded in Fisher is a debate about what means we find acceptable for the pursuit of racial equality today, given the nation’s history of discrimination and exclusion. Fisher also poses a question about our willingness to create and sustain racially integrated spaces for the education and cultivation of all citizens. Must all efforts toward this end be supported by gold-standard research, or are there democratic aims to which we should subscribe even in the absence of compelling social scientific evidence of their benefits?

    Fisher is also part of and constitutive to the broader social discourse on race, one in which a narrative of the postracial is increasingly taking hold. Some consider the idea of the postracial as a sign that America is healing old wounds (Heckman, 2011). Others warn against the potential of the postracial lens to obfuscate racial inequality—inequality that may be subtle yet persists nonetheless (Bobo, 2012). The tension between our aspirations toward a postracial society and the reality of ongoing racial inequalities—felt acutely in our educational outcomes—suggests that today, as always, we have work to do. Our journal is committed to supporting this work on our pages, and we welcome the efforts of those seeking to push forward these essential conversations.


    Bobo, L. D. (2012). An American condundrum: Race, sociology, and the African American road to citizenship. In H. L. Gates et al. (Eds.), The Oxford handbook of African American citizenship (pp. 19–70). New York: Oxford University Press.

    Fisher v. University of Texas, 570 U.S. (2013).

    Grutter v. Bollinger, 539 U.S. 306 (2003).

    Gurin, P., Dey, E. L., Hurtado S., & Gurin, G. (2002). Diversity and higher education: Theory and impact on educational outcomes. Harvard Educational Review, 72(3), 330–366.

    Heckman, J. J. (2011). The American family in black and white: A post-racial strategy for improving skills to promote equality. Daedalus, 140(2), 70–89.

    Jayakumar, U. (2008). Can higher education meet the needs of an increasingly diverse and global society? Campus diversity and cross-cultural workforce competencies. Harvard Educational Review, 78(4), 615–651.

    Parents Involved in Community School v. Seattle School District No. 1, 551 U.S. 701 (2007).

    Rostron, A. (2013). Affirmative action, Justice Kennedy, and the virtues of the middle ground. Northwestern University Law Review, 107(2), 1037–1044.

    Sander, R. H., & Taylor, S. Jr. (2012). Mismatch: How affirmative action hurts students it’s intended to help and why universities won’t admit it. New York: Basic Books.

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    Fall 2013 Issue


    After Fisher v. University of Texas
    Implications for Education Research, Theory, and Practice
    From the Editors
    McIntosh as Synecdoche
    How Teacher Education’s Focus on White Privilege Undermines Antiracism
    Timothy J. Lensmire, Shannon K. McManimon, Jessica Dockter Tierney, Mary E. Lee-Nichols, Zachary A. Casey, Audrey Lensmire, and Bryan M. Davis
    Democracy under Fire
    Voter Confusion and Influences in Colorado’s Anti–Affirmative Action Initiative
    Amy N. Farley, Matthew N. Gaertner, and Michele S. Moses
    From Bureaucracy to Profession
    Remaking the Educational Sector for the Twenty-First Century
    Jal Mehta
    Dirt on My Record
    Rethinking Disciplinary Practices in an All-Black, All-Male Alternative Class
    Na’ilah Suad Nasir, kihana miraya ross, Maxine McKinney de Royston, Jarvis Givens, and Jalessa N. Bryant

    Book Notes

    Education, Justice, & Democracy
    Edited by Danielle Allen & Rob Reich

    Creating Innovators
    Tony Wagner (supplementary video material produced by Robert A. Compton)

    Inside the Black Box of Classroom Practice
    Larry Cuban

    Youth Held at the Border
    Lisa (Leigh) Patel

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