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Unpublished Paper
The Haunting of Abigail Fisher: Race, Affirmative Action, and the Ghosts of Legal History
ExpressO (2012)
  • Hilary A Leewong, University of Chicago

What is race in 2012, and why does it matter?

At the end of the current term, the Supreme Court will decide Fisher v. University of Texas. In doing so, the Court revisits the role of affirmative action and the meaning of race much sooner than constitutional law scholars, and likely the average college applicant, expected it would.

The Court’s last definitive take on the subject was conveyed by Justice O’Connor in 2003’s Grutter v. Bollinger. Justice O’Connor’s opinion conveyed disappointment that race-based admissions in higher education was still necessary this long after Brown v. Board of Education, heralded the importance of “diversity” for its continuance, and urged the move toward a sunset of these race-conscious policies.

Not a decade later, the Court will assess the same, or similar, questions again. What has changed since 2003? The census reveals much. Soon, if not already, whites may no longer comprise a majority in this country. America has elected its first non-white, mixed-race, president. Mixed-race Americans may now be the fastest growing “ethnic” group. How, if at all, will these changes impact the Court’s treatment of race in Fisher?

The Haunting of Abigail Fisher: Race, Affirmative Action, and the Ghosts of Legal History conveys that the answers to this nation’s racial questions are far from obvious. Rather, race in law exists as a composite of vestiges of previous rhetoric and legal battles: from the days of Andrew Johnson in the Reconstruction era, through anti-miscegenation rhetoric of the mid-20th century. American legal history continues to haunt plaintiffs like Abigail Fisher to this day, with affirmative action as one of the last bastions of explicit race-based policy, post-Washington v. Davis.

As legal opinions at the turn of the 21st century teach, the use of race has long been seen by courts as either beneficent or malicious. But studying legal history reveals how racial categories have been constructed and reified by the three branches of government. As these categories may map less neatly onto opportunity and disadvantage, and they prove more fluid than ever before, what will become of race-based policy set forth by government? The time is ripe for reevaluation, and renewed sense of purpose and direction by the Supreme Court.

  • race,
  • affirmative action,
  • supreme court,
  • higher education,
  • admissions,
  • college,
  • university,
  • legal history,
  • constitutional law,
  • discrimination,
  • brown v. board,
  • ethnicity,
  • fourteenth amendment,
  • civil rights,
  • college,
  • university,
  • abigail fisher,
  • university of texas,
  • asian,
  • black,
  • latino,
  • white,
  • equal protection,
  • due process,
  • grutter v. bollinger,
  • sandra day o'connor,
  • president johnson,
  • racism,
  • civil war,
  • miscegenation,
  • anti-miscegenation,
  • loving v. virginia,
  • parents involved
Publication Date
September 16, 2012
Citation Information
Hilary A Leewong. "The Haunting of Abigail Fisher: Race, Affirmative Action, and the Ghosts of Legal History" ExpressO (2012)
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