Abigail Fisher and Affirmative Action: Pros, Cons and What May Happen In...

Abigail Fisher and Affirmative Action: Pros, Cons and What May Happen In the End


Today, the U.S. Supreme Court heard arguments in a case challenging Affirmative Action in college admissions.

White Texan Abigail Fisher filed a law suit against the University of Texas in 2008 after the school denied her admission because of the color of her skin, she said in her complaint,  filed in a federal court in Austin, Texas.

Following a 2003 U.S. Supreme Court decision in Grutter v. Bollinger which suggested that race could indeed be considered in college admissions, to ensure that there was adequate racial diversity, the school starting reserving 10% of its annual admission spots to students who graduated in the top 10 % of their class, including students of color from all minority schools, and admitted the remaining based on class rank, and other factors without regard to race.

Fisher, who has since attended and graduated from Louisiana State University and is currently working as a financial analyst, may well had been denied admission on a variety of other factors.  Yet, her suit seemed based on a resentment and assumption that there may likely had been minority students who were accepted with academic qualifications less than hers.

In a Wall Street Journal editorial, University of Texas President Bill Powers defending his university’s admission policies, writing:

Our policy doesn’t strive to achieve a quota or demographic target. Diversity benefits all students… but that is only the beginning of its benefit to society. Preparing young people to lead in an increasingly global civilization also pays dividends for employers, organizations, governments, communities and everyone who is served by our graduates as they leave the academy to make a difference in the world.

There are downsides to Affirmative Action which many people of color complain of in the classroom and workplace.  They manifest themselves when a classmate avoids letting in a perceived Affirmative Action admit into the study group under the presumption that person may not be as smart and may not being able to contribute or when a  co-worker second guesses, undermines or goes around the authority or work of a co-worker or supervisor of color, assuming their skin color had something to do with their position or hire.

Personally, I am aware of  an example of the negative aspect of Affirmative Action at one particular historically Black college’s law school. The year after I graduated, almost every single one of the dozen or so black law students hired at exclusive top ranking law firms, post-graduation were fired within their first four years.  Each year to fill their racial quotas, law firms flock to that particular school in droves to sign up and offer black students coveted associate positions. But they never last.  It could be because they were not mentored well or didn’t have sufficient support. Perhaps there was a lack of access to quality work and clients.  Or maybe they were given a short rope to hang themselves with hiring partners and other senior associates working with them under the suspicion they really weren’t as valuable.

Thus, the existence of Affirmative Action could set up minority students to always have to work and study under a cloud of illegitimacy.   A common basis given for the continued need of  Affirmative Action is that it remedies past and ongoing societal discrimination and bias. That argument could get cloudy when one thinks of all the recent immigrants, especially those in California and Texas, whose ancestors suffered no civil rights bias and discrimination, yet benefit because of their race.  Many point out the fact that first generation Asian American students have benefited most from Affirmative Action when those policies perhaps were not created with that group in mind.

Beyond that, I could definitely attest to the value of racial diversity in my own law school classroom experience.

It was one of the toughest challenges for me attending a school where many times I was one of as few as two students of color in a large classroom of 100 or more. I often felt having to represent my entire race in classes where race, inequality, discrimination or inequity came up.  There was no one else to offer the “Black experience” so I’d have to step up to the plate each time.

I felt resentful over the fact that I had to educate my class on the perspectives and experiences of Blacks in America. Other students didn’t bear the same burden and could attend class the first year without the extra pressure of having to answer and speak on behalf of their entire race.

That feeling was felt strongest in courses like Criminal Procedure and Constitutional law. I’d feel a flush of warmth overcome my face as all eyes pierced through my skull as they waited to hear me explain why it is not okay to be stopped and frisked on an almost daily basis.

I recall one occasion when a classmate raised his hand in class and declared that it was a minor inconvenience for people to be stopped and frisked  frequently. I and the other few blacks in class hands up shot up as each of us wanted an opportunity to explain why it was wrong to discount the inconvenience and shame of having to squat on a sidewalk before your neighbors while surrounded by dozens of officers running your plates. All because maybe you were driving your dad’s BMW in your own neighborhood on your way home from your job at the mall. Casual clothes on certain kids look like gang gear to some.  The presence of a BMW on a nice block could be suspicious.  There is a value to diversity in the classroom.

The fervent and passionate responses to the occasional off base remarks I’d have to give in response to some of my classmates indeed provided much needed perspective to the class. If not for my presence to offer that “other side”,  I could imagine many would leave schools with the same unawareness of the experiences of other people. Sometimes the academic environment is the only opportunity some people have to regularly interact and socialize with people unlike those they may be accustomed to interacting with. Many in the school I attended were privileged and came from wealthy backgrounds. I did not.

It sure would have been great to have a few friends in class, perhaps admitted on Affirmative Action basis to add some input, but it would be tragic if they were admitted with severely lower admission scores and dropped out after. Indeed, several fellow Black  students who started with my class could not make it to graduation.

Perhaps, as some may say, their spot was a wasted spot and that the problem of their inadequate preparation to handle the rigors of law school started years before – perhaps in an inferior poorly staffed and resource elementary school, impoverished family background, or as a consequence of limited access to professional guidance.

Decent point, but some admits did do well and excelled. And also what about legacy admissions? Those are policies where students of alumni or who come from wealthy families who donate large amounts to schools are given special consideration including admission even if their grades are not up to the schools admission standards. It is an admission criteria used often in the nation’s most elite schools. There too, most beneficiaries are Whites given the expansive wealth gap in the nation and the fact that a significant and overwhelming majority of those who create endowments to schools are Whites. What about their children? Isn’t that also a form of de facto race-based discrimination?  Should those too be banned?

Then there is the other argument that admissions should be limited to poverty, but still race is still that divided classification that is beyond socio-economic status.

A summary of today’s oral arguments seems to suggest that Fisher’s attorney didn’t think the US Supreme Court needed to overrule or change course on the Grutter decision altogether which permits some race consideration. According to Wall Street Journal’s Brent Kendall’s live blogging of the arguments, Fisher’s attorney Bert W. Rein seem to just want numerical quotas as in UT’s policy struck.

According to the Scotus Blog, at the halfway point through oral arguments, the liberal justices asked the most questions and seemed to support upholding the law while the conservative Justices seemed quiet and didn’t ask many questions. However, they will likely speak up once US Solicitor General Verrelli starts defending UT’s policy, SCOTUS blog blogger Kevin Russell stated. Liberal judge Elena Kagan had to recuse herself because she worked on the case while at the Department of Justice before being seated on the Bench.

As I wrote before, it should be noted that Justices John RobertsAntonin ScaliaClarence Thomas and Samuel Alito have previously taken anti-Affirmative Action stances in prior decisions.  The remaining Justices, Sonia SotomayorRuth Bader Gingsburg and Stephen Breyer,,are more liberal and are more likely to uphold the Texas Affirmative Action program.  One would think that this decision could then hinge on Justice Anthony Kennedy, who under the current make up of the court has become the “swing” vote, though he’s voted with the conservative wing 63% of the time since 2010.  However, he occasionally sides with the liberal wing according to the SCOTUS Blog. Kennedy has voted against  Affirmative Action in the past. In 1989, he voted in City of Richmond v. J.A. Croson Co. against federal contractors setting aside 30% of contracts for African Americans.  Also that year, he voted with the majority to allow disgruntled White workers in Martin v. Wilks to challenge Affirmative Action settlements. That same year, he also voted in Wards Cove Packing v. Atonio which challenged numerical underutilization of women or minorities.

No one could know for sure if Kennedy will swing right as few suspected Chief Justice Roberts to abandon his conservative brethren to uphold the Affordable Care Act.

In any event, what may likely happen is the court may strike the numerical admission aspect to UT’s policy, while upholding Grutter.

This move would preserve Affirmative Action but perhaps make it even more challenging for schools to apply it. Colleges and Universities will have to be creative and also in that, be prepared for another challenge down the pike.