The Affirmative Action Case That Could Change Everything
A look at the Fisher v. University of Texas case as it heads into another showdown at the nation’s highest court
By Rachel Forrester
The Progressive Teen Staff Writer
LAST WEEK, THE SUPREME COURT heard arguments for the case Fisher v. University of Texas. The plaintiff, Abigail Fisher, claims that she was denied admission to the University of Texas in 2008 because of her race.
The University of Texas automatically grants admission to any student in the top ten percent of their high school class, and grants the remaining twenty-five percent of admissions to lower ranked students, using race as one factor among many for determining admissions.
Because the top-ten program recognizes achievement within a student’s high school rather than comparing all students statewide, it has been praised for both recognizing merit and facilitating admission of minority students attending Texas’s largely segregated high schools.
Fisher, a white woman, was in the twelfth percentile of her high school class. Because she did not qualify for automatic admission under the top-ten program, she was competing for one of the remaining twenty-five percent of admission places. Upon being denied admission Fisher sued, claiming that she had been discriminated against for being white.
The policy of giving minorities preference for college admissions, commonly referred to as affirmative action, has been a divisive issue in American politics since it was first challenged in the Supreme Court by Allan Bakke in 1978.
Bakke, a white man who was denied admission to UC Davis, argued that because members of racial minorities with lower test scores than his were given admission to Davis, he was a victim of racial discrimination. Bakke v. Regents of the University of California set a legal precedent that affirmative action is constitutional but cannot be the deciding factor for admissions.
It has been confirmed in multiple Supreme Court cases since Bakke that affirmative action can only be applied in situations in which there is compelling evidence that all students, not just minority students, receive benefits from “educational diversity.” Fisher once again questions the constitutionality of affirmative action and threatens to end the practice altogether.
Fisher’s testimony last week was not her first in the Supreme Court. In 2013, the Supreme Court voted 7–1 to send Fisher back to the lower courts because the case had not been considered under the proper standards of strict scrutiny. Although it is possible that Fisher may once again be deferred to a court of appeals, it is likely that the Supreme Court will come to a decision that will either affirm or condemn the use of affirmative action in the University of Texas or in all American institutions of higher education.
Many of the justices have already indicated their positions on affirmative action, with the four member liberal wing supporting it and the four member conservative wing opposing it. Justice Kennedy, the swing judge in this case, has never voted in favor of affirmative action.
It is also worth noting that while Justice Kagan supports affirmative action, she has recused herself from the case because she worked on it while serving as Solicitor General. If Justice Kennedy votes with the liberal wing, the resulting 4–4 tie would signal a continuation of the existing affirmative action program. If he votes in favor of the plaintiff, affirmative action can potentially be deemed unconstitutional.
During the arguments on December 9th, Justice Antonin Scalia shocked the media and the public when he suggested that black Americans do not benefit from attending selective schools and that they should, “go to a less-advanced school, a slower-track school where they do well.” He continued by asserting that many black scientists, “come from lesser schools where they do not feel that they’re being pushed ahead in classes that are too fast for them.”
Not only is Scalia’s suggestion that blacks are inherently intellectually inferior a blatantly racist throwback to segregationist ideology, most evidence suggests that it is not in any way factual. The National Journal quoted Anthony Carnevale, director of the Georgetown Center, in a statement that, “If Scalia’s theory were true, equally prepared students of all races would do worse at more selective colleges…In fact, we find the opposite is true.”
In addition to Carnevale’s assertion, a study conducted by sociologists Sigal Alon and Marta Tienda at Princeton University in 2006 suggests that minority students in particular are more likely to graduate from selective colleges than from open enrollment colleges. Despite this evidence, many recent interviews conducted with University of Texas students have exposed underlying assumptions among white students of black students’ inability to meet them on an intellectual level.
Some believe that the ten-percent program itself promotes racial segregation. Justice Ruth Bader Ginsburg expressed concern that by assuming de-facto segregation, the ten-percent program, “operates as a disincentive for a minority student to step out of that segregated community and attempt to get an integrated education.”
Whether or not the Supreme Court strikes down affirmative action in Fisher, Justice Breyer voiced a very valid fear when he worried that Bakke, Fisher, and all other similar Supreme Court decisions in the past and future will, “kill affirmative action through a death by a thousand cuts.”
