Will the Supreme Court Side With Abigail Fisher in Affirmative Action Case?

BlogHer Original Post

A young Texan’s displeasure with not getting into her family’s alma mater has opened up a controversial topic that is mired a flurry of emotions, and a mire of contradictions. Many American colleges have a policy to encourage diversity on their campuses, but it is now up to the United States Supreme Court to decide whether affirmative action programs are levelling the playing field for minorities or unfairly punishing whites. It must be noted that affirmative action policies also protect people who might be discriminated against because of their religion, gender, sexual orientation, or national origin, but in this case, like so many others that land in the media’s eye, the focus is on race.

Oct. 10, 2012 - Washington, District of Columbia, U.S. - Supporters of Affirmative Action rally outside of the United States Supreme Court in Washington, D.C. on Wednesday as the Court heard a case that could determine how universities use affirmative action at campuses nationwide..Programs used by university admissions offices nationwide could be affected by the Fisher v. University of Texas case where Abigail Fisher, a 22-year-old Texan, claims she was denied admission to the school's flagship campus in Austin because she was white. (Credit Image: © Pete Marovich/ZUMAPRESS.com)

When Abigail Fisher was 18, she was denied entry into her first choice for higher education, University of Texas (UT). Despite her grades not being high enough to be accepted (she was 82 in a class of 674 with a 3.59 grade point average, and her SAT was 1180 when University's cut-off limit was 1200), she blamed the school’s policy of recruiting and admitting Latinos and African-Americans for denying her admission. Fisher seems to ignore her disqualification based on the  university’s personal index consideration, which is described as two graded essays and six other factors: leadership potential, honors and awards, work experience, community service, extracurricular activities and special circumstances. From NPR:

"Even if Abigail Fisher had received a perfect Personal Achievement Index score she would not have been admitted ... because her Academic Index was simply not high enough," says Gregory Garre, lawyer for the University. Garre, who served as U.S. solicitor general in the George W. Bush administration, says flatly that "Fisher would not have been admitted, no matter what her race."

Four years have gone by. Fisher is now 22 and despite being accepted and later graduating from another school, she gave a deposition at a Supreme Court hearing on Wednesday, October 10. The University of Texas accepts 75% of freshman students based on their SAT scores and their grades in their senior high school year. Twenty-five percent are evaluated not just on their grades, but for other reasons, such as racial and socioeconomic backgrounds. During the oral arguments, judges debated UT ‘s policy of ‘diversity within diversity’ which meant, for instance, that there were a number of reasons to admit students outside of base factors such as race. 

Relying on the 2003 decision in Grutter V. Bollinger, which upheld race-based affirmative action policies to achieve a critical mass of campus diversity, UT created an atmosphere where students could be exposed to a variety of racial backgrounds and individual experiences. This means that all students have access to a diverse set of cultures and experiences through interacting with other students, clubs and activities, which would be more advantageous when leaving school and entering the real world. From the SCOTUS Supreme Court of the Unites States Blog:

A black student who graduates in the top ten percent of a majority-black high school in the inner city of Houston may have a materially different experience and perspective than a black student who attends a mostly white private school in Waco and just misses the ten-percent cutoff.  The strength of UT’s policy – as the U.S. Solicitor General emphasized in his oral argument today – is that it creates room for the African-American champion fencer and a Latino who has mastered classical Greek, but who rank in the second decile of their respective graduating classes in a suburban school district or elite private school.

Even if the policies serve to admit black or Latino students who just missed the admission cutoff, Fisher and the petitioners still see this as unjust. SCOTUS Blog Writer Roger Clegg felt that individual backgrounds was not taken into consideration, just the racial categories which was troublesome. For example,  ‘Asians’ could consist of students from both South and Eastern Asian ethnic backgrounds. He also  argued that UT’s position means that:

If a school wants multifaceted “diversity,” then mightn’t it follow that it should give preferential treatment to wealthy African Americans, if there is a shortage of them compared to disadvantaged whites and blacks, who must therefore be disfavored?

But wealth does not negate racial discrimination and the resulting disadvantages. Fellow SCOTUS blogger Elise Bodie countered with:

Unfortunately, race still matters, not because it should, but because it does.
This holds even for “privileged” minorities who also bear the brunt of racial discrimination.  As employment studies indicate, African Americans with the exact same qualifications as white applicants are still less likely to be selected for jobs.  Higher-income minorities also still experience the indignities “driving while black,” the greater likelihood of being stopped by the police; and studies demonstrate that predatory lending has disproportionately affected minority communities, even controlling for socioeconomic status.

Evette Dionne from Clutch Magazine believes that Fisher v. UT is simply based on white privilege. This means that despite policies to promote diversity and equality within post-secondary education, that “white means might”:

You (Fisher) might not be aware of white privilege because it isn’t analyzed in grade school, but it appears subliminally in westernized culture. The errant thought that the University of Texas at Austin is obligated to grant you admission because you were underqualified, white and the spawn of alum is a manifestation of privilege. Unfortunately, that wasn’t an infallible plan.

I agree with Dionne that many view affirmative action as simply a weapon to enforce political correctness, choosing to see it as a mechanism of stripping away the rights of white people. But the courts in California seem to agree with Abigail Fisher.

In April of this year, a Federal judge in California rejected the attempt to lift a ban on preferential treatment based on race in relation to college admissions for the University of California, Proposition 209. The Grutter v. Bollinger decision, along with a drop in admissions of Hispanics, African-Americans and Native Americans since the proposition was passed, were cited as reason to uphold the ban. One of the issues that is interesting about Proposition 209 is that it does give preferential treatment to military veterans, athletes and children of alumni. Will the Supreme Court decision affect California at all?

From Understandingprejudice.org, the myths that based on population demographics (and common sense) these myths are statistically untrue:

According to the U.S. Commerce Department, there are 2.6 million unemployed Black civilians and 114 million employed White civilians (U.S. Bureau of the Census, 2011). Thus, even if every unemployed Black worker in the United States were to displace a White worker, only 2% of Whites would be affected.

In Canada, students (and parents) are not concerned about these precious slots being given to the undeserving Hispanics and Blacks, the concern focuses on Asians. There are no enforced Affirmative-Action-type policies at Canadian universities, but there are provisions made for First Nations / Aboriginal students in the majority of post-secondary schools. In 2010, Macleans Magazine ran an ill-advised article originally entitled, “Too Asian?” but quickly changed to The Enrollment Controversy.  The magazine interviewed a number of white university students who were concerned that ‘Asians’ who excelled academically, avoided beer pongs and promiscuous sex, were ‘taking over,’ which caused some kids to avoid applying to certain, high-ranked universities:

Indeed, Rachel, Alexandra and her brother belong to a growing cohort of student that’s eschewing some big-name schools over perceptions that they’re “too Asian.” It’s a term being used in some U.S. academic circles to describe a phenomenon that’s become such a cause for concern to university admissions officers and high school guidance counsellors that several elite universities to the south have faced scandals in recent years over limiting Asian applicants and keeping the numbers of white students artificially high.

Soo... affirmative action for white people is okay?

I really enjoyed my four years at my alma mater, York University, which is not considered an elite school, but is known for its socially and politically innovative curriculum, extremely culturally diverse student population and its well-respected law school. York is one of the few in Canada that consider the backgrounds of the students, such as single mothers, mature students or people who have not been able to complete their high school studies, and offers special programs which can lead to full-time enrollment. The school is also located north of Toronto and is in walking distance of a very low-income, undesirable neighbourhood.

After my first year, my mother told me about what an acquaintance had said when she told him her daughter was attending York. “Too many immigrants,” the man said, adding that the education given must be sub-par. “Why would she want to go there and be surrounded?” So while Americans might be more forthright with their bigotry, in Canada, we tend to be passive-aggressive. We don’t go in front of our Parliament to demand changes, we just wait until we are asked, and then we openly share how we really feel.

The reality is that even in a democratic society, there are social and racial injustices that will always hinder some from educational and employment opportunities. While it would be easy to position Fisher as a privileged, whiny brat who didn’t get her own way, this case goes much deeper than one woman’s experience. Based on the race-tinged, fear-mongering tactics used in both the 2008 and 2012 American presidential election, the politics of race are widespread in society.

The Supreme Court is not expected to announce a decision on this case until early 2013. But in a few weeks, Americans will go to the polls to pick the next President of the United States, who will be responsible for -- among other things-- appointing justices to the Supreme Court. Will voters be thinking about affirmative action as they head to the polls?


Laina Dawes, Race & Ethnicity Section

Website: Writing is Fighting

My Book (Out this Fall): What Are You Doing Here? A Black Woman's Life and Liberation in Heavy Metal

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