UC Berkeley

As we stand on the cusp of another Supreme Court opinion concerning the use of racial considerations in education from Fisher v. University of Texas, the Court’s final verdict may potentially be another set back for affirmative action policies in education. However, the historical trajectory of the Court’s approach to racial issues in and beyond education suggests a more critical assessment of legal moments such as Fisher is needed. That is, Fisher must be placed within a historical racial narrative carefully orchestrated by the Court. The Court’s racial narrative adjudicates social cleavages on race in areas such as voting rights, employment law, criminal justice, and education. A comprehensive engagement of the Court’s discursive trajectory on race is necessary in order to accurately understand the significance of Fisher in the aftermath of Brown v. Board of Education. Without an engagement of the Court’s previous moments, our understanding of Fisher’s significance becomes limited and trapped within the mainstream colorblind racial narrative that all but dismisses the salience of racial subordination in society. This study will show that by engaging the Court’s long and unfortunate history adjudicating racial issues, white privilege and whiteness has been protected and perpetuated by the Court’s powerful authority. Furthermore, regardless of Fisher’s outcome, an engagement of how the Court has defined, protected, and perpetuated whiteness will fundamentally understand Fisher not only as a defeat or victory for racial considerations in education, but as an instantiation of the continuing problem of race in society. As a result, the persistence of racial subordination in the ‘colorblind’ era is anything but coincidental.