The Supreme Court and Affirmative Action

By ticorules on March 26, 2013 • ( 1 )

The Supreme Court has an interesting and full docket this year. Everything from voting rights, which I’ve discussed earlier, to marriage equality. One of the most potentially explosive, however, is Fisher vs. UT Austin, which deals with affirmative action on college admission applications.

Abigail Noel Fisher, the plaintiff in the case, is now the poster child for horrors of reverse discrimination. At least that is what her defense team would have you believe. In 2008, Fisher applied to the particularly selective University of Texas at Austin — her “dream” school with several alumni already in her family. Her application was denied, she claims, due to a racial bias in the school’s admissions system — and she is still fighting to change that system through the courts five years later.

Here’s a quote from Ms. Fisher from the New York Times Article:

“I’m hoping,” she said, “that they’ll completely take race out of the issue in terms of admissions and that everyone will be able to get into any school that they want no matter what race they are but solely based on their merit and if they work hard for it.”

Problem number one: that little sound bite, as powerful as it may be, is not really true — which brings us to problem number two, the coverage in the Times article itself. The Times piece gives Fisher plenty of time for plucky quotes, sits in on a freshman seminar attended by many an “ethnic” student, breezes over some really critical information about student diversity in Texas and the UT admissions system in general, and loops back around to finish with a painfully condescending pat-on-the-head question to Fisher — a grown woman at the center of a pivotal Supreme Court case — by asking if she finds her role in the larger drama “exciting or scary.” But it doesn’t bother investigating either the veracity of her statements or the appropriate context for the case around UT.

We’ll get into the substance of her claims in a moment. For now, let’s let Ms. Fisher keep digging in, courtesy of the much better journalism at Pro Publica:

“There were people in my class with lower grades who weren’t in all the activities I was in, who were being accepted into UT, and the only other difference between us was the color of our skin,” she says. “I was taught from the time I was a little girl that any kind of discrimination was wrong. And for an institution of higher learning to act this way makes no sense to me. What kind of example does it set for others?”

Oh my God! Will someone, anyone, please stand up against this poor soul who, if not for the rampant reverse racial discrimination, would have lived a full and vibrant life. Oh, right. I forgot. None of that is in any way correct. Here’s some of the context that the New York Times left out:

92% of all the spots at the University of Texas at Austin were taken up Texas high school students who were in the top 10% of their class. Ms. Fisher was not in the top of her class. So when she says schools admissions should be “solely based on merit and if they work hard for it” — that doesn’t seem like the lever that was going to save her case.
Secondly, UT Austin offered her a chance to transfer into the school during her sophomore year if she maintained a paltry 3.2 GPA. Sounds like something a merit-loving, high-achieving student could pull off, yes?

Let’s keep that in mind as we listen to Ms. Fisher (now a college graduate from Louisiana State University, working in finance in Austin), talking about her grievous injuries from the UTA rejection:

Asked by a news reporter what harm she had suffered, she cited only her inability to tap into UT’s alumni network and possibly missing out on a better first job. If she wins, Fisher seeks only the return of her application fee and housing deposit — a grand total of $100 in damages.

So to sum up: her losses were the UT network, which she still has access to through her family, possibly a better job which is totally subjective, and $100 which for many college-bound students is the cost of doing business applying to more than a few colleges in general. Will she ever recover? Should we start a Kickstarter to help pay for therapy caused by this emotional tumult? I suggest not. I further suggest that if you’re going to cry racism and social injustice, you should be able to point to something more substantial than $100 and a cushier-than-your-already-presumably-very-respectable-entry-level-finance-job position as your points of grievance with the system.

This is actually a symptom of a much larger problem. Ms. Fisher — and her backers — believe that it was her right to go to one of the best schools in the nation despite the middling grades and ho-hum SAT scores because “she dreamed of carrying on the family tradition by joining her sister and father among the ranks of University of Texas at Austin alumni.” So what! I think I’ve finally found what Justice Scalia was talking about when he referred to Perpetuation of Racial Entitlements. I don’t know how else to describe this of argument of hers that’s so steeped in privilege and so full of holes. And speaking of holes, here’s a couple of facts that you didn’t hear from the plaintiffs. The emphasis is all mine:

It’s true that the university, for whatever reason, offered provisional admission to some students with lower test scores and grades than Fisher. Five of those students were black or Latino. Forty-two were white.

And perhaps more importantly,

Nor did they acknowledge the 168 black and Latino students with grades as good or better than Fisher’s who were also denied entry into the university that year.

Say what you want about the flaws and failings of higher education in America — they are legion. Many of those failings do indeed involve issues of equity, outreach and access — if not for middle-class white kids from educated families. You can have an interesting conversation around initiatives like the Top Ten program at UT. But “entitled white B+ student doesn’t get into selective college of choice because RACISM” is not that conversation. Really, if you’re looking for a solid hook into the real results and broader implications of affirmative action in American colleges, the Fisher case is as lightweight as they get — and it’s unfortunate that the Court has chosen this vapid a route to that important a discussion.

This case is a lot bigger than Fisher’s dreams getting quashed by UT Austin’s supposedly reverse discriminatory practices. Even Edward Blum, the guy who’s bankrolling this case, admitted that “Fisher’s credentials and circumstances make it difficult to argue that but for her race Fisher would have been a Longhorn.” It’s really about the perception that whites are now the injured parties due to racism. That must be why Mr. Blum, is comparing Jim Crow laws to affirmative action policies. When speaking about these “twin evils” he stated “I see no distinction.” A recent study by Tufts University and Harvard Business School showed that whites believe that they are the victims of racism more often than blacks. This is an argument that seems to have a sympathetic venue in our conservative Supreme Court. And in my opinion, although this case seems like it’s going to be laughed out of court, they’ve already cued up another case involving affirmative action. They seem hell-bent on dismantling the current system. They just haven’t found the case to do it yet.

I happen to believe that diversity is important. Is affirmative action the best way to achieve that goal? Are there better ways in the current system or even better systems altogether to try to fix this problem? By all means, let’s have that dialogue. But that discussion will not feature Ms. Fisher, and it certainly won’t be advanced by the lawyer who sees no distinction between Jim Crow laws which were designed to segregate society based on the perception (among many others) that blacks were inferior and affirmative action, which was designed to redress some of those abuses.

Sure, Mr. Blum. These two things are exactly the same, except for the part where folks who resisted the indignities of Jim Crow laws were subject to abuse, degradation and possible death by lynch mob, and the apparent results of resisting affirmative action are a degree from Louisiana State University and a thoroughly white-collar job. Yes, how frighteningly similar. Twin evils indeed.