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.

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