Professors Explore Supreme Court's <em>Fisher</em> and <em>Shelby County</em> Decisions

Professors Jamal Greene, Theodore M. Shaw '79, and Susan Sturm Assess What's Next in Legal Battles over Affirmative Action and Voting Rights

New York, September 16, 2013—The U.S. Supreme Court’s June rulings in Fisher v. University of Texas and Shelby County v. Holder have left the future of affirmative action and the 1965 Voting Rights Act (VRA) uncertain, Columbia Law School professors said in a Sept. 10 panel discussion. 

In the Fisher case, a white student who had been denied admission to UT alleged that she had been discriminated against on account of her race. The high court vacated a lower court’s ruling in favor of UT, sending the case back for further consideration. In Shelby County, an Alabama county sued the federal government alleging that two provisions of the VRA requiring federal pre-clearance for changing voting laws were unconstitutional. In its decision in that case, the Supreme Court threw out the provision by which the federal government determines which jurisdictions must obtain pre-clearance.
In their discussion, Professors Jamal Greene, Theodore M. Shaw ’79, and Susan Sturm addressed how both decisions will impact efforts to confront the legacy of racial discrimination. 
Greene outlined the history of affirmative action in higher education and circumstances surrounding the implementation of the VRA. He explained that the landmark Regents of the University of California v. Bakke decision in 1978 and Grutter v. Bollinger in 2003 permitted affirmative action for purposes of educational benefits, but not for remediating historical disadvantages.
Shaw, Professor of Professional Practice in Law and a key player in developing the race-conscious admissions policy upheld by the Supreme Court in Grutter, said Fisher was “a non-decision decision” that didn’t spell the end of affirmative action but might precipitate more scrutiny of such policies in the future. He suggested, however, that “Shelby County is the type of blow people feared from Fisher,” likening the court’s changes to the VRA to “having a laptop where the hard drive has been taken out.”
Sturm, the George M. Jaffin Professor of Law and Social Responsibility, focused on how supporters of affirmative action are planning to move forward after Fisher, a topic that constitutes a major part of her work as founding director of the Center for Institutional and Social Change. “Lawyers are not only litigating,” Sturm said, “but trying to shape the conversation and culture, and working with the media as a partner in defining laws and norms.”
The panel discussion was organized by the Columbia Law School chapters of the American Constitution Society (ACS) and the American Civil Liberties Union (ACLU).