Affirmative Action Now, Affirmative Action Tomorrow, and Affirmative Action FOREVER
I understand that many who read this blog are much like myself: Black and pursuing post-graduate education. We managed to graduate college, and, realizing that our opportunities would grow if we got more education, applied and got into a graduate program in some field. Without knowing for certain, however, many of us likely benefited from some form of affirmative action program designed to increase diversity in our respective field. Well, the Supreme Court on Wednesday, October 10th will hear oral argument in a case that could fundamentally change the way affirmative action policies are administered in the United States.
The seminal case in the area of affirmative action with regard to higher education is Grutter v. Bollinger. This case established the framework for constitutional affirmative action policies used by public schools when admitting students. In short, Barbara Grutter sought admission to the University of Michigan Law School, and was denied. The law school made a limited use of race in their admissions practices, however, Ms. Grutter sued pursuant to the 14th Amendment saying that this was an impermissible use of race by the government of Michigan, the university being an organ of the state. The Supreme Court disagreed. The Court went into great detail analyzing Michigan’s policy, and determined it passed constitutional muster.
The High Court ended up holding that race can be considered in higher education admissions policies, but that it can only be considered as one of many factors. Race can’t be the difference-maker. Overt racial quotas are unconstitutional. Separating minority applications and only comparing them to each other is impermissible. These kinds of policies are subject to what’s called “strict scrutiny.” This means that the entity taking race into account must be pursuing a compelling state interest, and must use methods narrowly tailored to achieve the goal.
Got it? Good.
Enter Abigail Fisher, a white female, Texas resident, and high-school student (in 2008). She applied to the University of Texas, Austin. UT-Austin denied her admission, and she sued on grounds that UT-Austin’s admissions policy, which takes into account the applicant’s race in a limited way, was unconstitutional discrimination. Sound familiar? It’s a very similar circumstance to Grutter, but the twist is in what the University of Texas already does to increase minority enrollment.
The great state of Texas had a problem. It wanted to increase minority enrollment in its flagship school. It’s response was to adopt a top 10 percent plan. This plan says that if you graduated in the top 10 percent of your high-school, you were guaranteed admission to UT-Austin. This plan fills up 80 percent of all available spots in UT freshman class. Ironically, because many of Texas’ high-schools operate under de facto segregation, the 10 percent plan worked well to increase minority enrollment.
In the first year, the plan increased Black enrollment from 2.7 to 3.0 percent. Hispanic enrollment went from 12.6 to 13.2 percent. But the university still felt this wasn’t enough. It conducted studies that established that minorities still felt isolated in classes. It polled students who spoke about the lack of diversity. After these measures were taken, the school adopted an admissions policy in addition to the 10 percent plan.
This new plan goes like this: If you are not automatically granted admission through the 10 percent plan, your application is judged based on two metrics. There are 2 indices: an Academic Index, and a Personal Achievement Index. The Academic Index looks at your high school GPA, coursework, and the difficulty of the curriculum at your high-school. The Personal Achievement Index looks at your community service, household makeup, socioeconomic status, compelling circumstances outlined in your personal statement, and many other facts . . . including your race. These indices are only analyzed for Texas residents who are not in the top 10 percent of their high-school class. This is the plan that Abigail Fisher felt was unconstitutional. The words of her brief spell out her sentiment:
“Although [Fisher’s] academic credentials exceeded those of many admitted minority candidate’s, UT denied her application.”
This sentiment seems to be at the heart of this, and many other affirmative action suits. You have a White applicant who feels in their heart that their judgment of their own credentials is better than the judgment of admissions professionals who assess thousands of students each year for a living. The thinking can be reduced to “I know I am better than these darkies, therefore I should have gotten in.”
Let’s see if this is true according to UT. The university’s brief is telling; let’s see how miss Fisher stacked up:
- She was NOT in the top 10 percent of her high school graduating class.
- SAT Score: 1180 of a possible 1600.
- GPA: 3.59
Because Ms. Fisher was not in the top 10 percent of her class, she gets scored based on the Academic Index and her Personal Achievement Index. A high enough score on both of these indices would get her into the doors of UT-Austin. According to their brief:
“[Fisher] scored an AI of 3.1 and received a PAI score of less than 6. Due to the stiff competition and [Fisher’s] relatively low AI score, [Fisher] would not have been admitted to the Fall 2008 Freshman class even if she had received a “perfect” PAI score of 6.”
Well, there you have it. Even having the highest possible score on the index that takes race into account, Abigail Fisher would not have made the cut. In other words, she could have been Black and worked in a coal mine, while still managing to learn Mandarin and play the cello, and STILL NOT HAVE BEEN ADMITTED. Yet she thinks she should have. She thinks the thing that got in her way was her race. Not her GPA. Not her SAT score.
Many opponents of race-conscious admissions policies point to the “overmatch theory”. This is the notion that affirmative action policies place under-qualified minorities in academic environments they cannot survive in. The reasoning goes either these minorities flunk out, or they are stuck with the stigma of being an affirmative action recipient and their peers don’t respect their achievements. The problem with this is, any constitutional admissions cannot make race the difference maker. Thus one’s status as a minority would and could never be the sole reason one got into a school. A candidate would have to meet several other criteria as well, in this case the academic credentials, and then receive a negligible boost being from an under-represented minority.
The wrinkle in this case comes from the strict scrutiny analysis. The university needs to have a compelling interest in racial diversity. The school says it does. Michigan said it did in the Grutter case and the Court agreed. The mechanism to achieve this compelling interest needs to be narrowly tailored, but there’s the hitch. Fisher’s argument is that because the school already employed a race-neutral plan (the top 10 percent plan), and this achieved more diversity, UT’s additional race conscious plan is therefore not narrowly tailored.
Fisher is essentially saying that enough minorities would get into UT-Austin through the 10 percent plan, and therefore the additional plan is unconstitutional. Thinking about this briefly, she is arguing for the sole use of a plan that would not have gotten her into the school at all . . . because she was NOT IN THE TOP TEN PERCENT OF HER HIGH SCHOOL.
The question will become whether the Court will defer to the expert opinion of the university, its exhaustive studies, and professional judgment in deciding the number of minorities that meet its goal of diversity, or will it defer to the assessment of the effectiveness of the 10 percent plan as seen by Abigail Fisher and her attorneys?
Some think this case could spell the end for affirmative action in higher education. I don’t think so. Only UT’s policies are challenged here, not the underlying reasoning from Grutter. If the Court sides with Fisher, however, public schools could be greatly bound in the ways they can pursue diversity.
Spurned White folk all over the country will have their eyes on the Supreme Court next Wednesday. Centuries of the the field being slanted in the favor of the majority, followed by only about a decade of the field being only slightly tipped in the other direction, have led the until-recent beneficiaries of discrimination to call for the end of policies that are placing genuinely qualified minorities in college and universities.
Talk about a sense of entitlement.
*Since her initial denial, Ms. Fisher has gone to and graduated from LSU. A judgment in her favor would only produce a remedy that would likely greatly decrease minority enrollment in the University of Texas.
*Author’s Note: A recent New York Times interview of Ms. Fisher has confirmed that she is actually a cellist. Apparently they don’t value the cello at the University of Texas, Austin.