Monday, October 8, 2012

The End of Affirmative Action? Supreme Court Hears Fisher v. Univ. of Texas

Abigail Noel Fisher
Wednesday, the Supreme Court will hear the case of Fisher v. University of Texas at Austin.  Abigail Noel Fisher, a White woman from Texas, claims that she was denied admission to the University of Texas ("UT") because of her race.  More specifically, she claims that UT's admissions process, which uses a narrowly tailored form of affirmative action to increase diversity, is unconstitutional because it discriminates against Whites. (We've written on this before).

Now, before we go any further, it is important to understand what exactly is at issue here.  Typically whenever affirmative action is up for public debate, people jump straight into a discussion about whether or not a Black or Latino student should receive an unfair advantage by being admitted into a school over an equally situated or more deserving White student.  That is not the issue before us in Fisher.  The issue in this case is whether or not state colleges and universities can use race as one factor among many other factors when determining admissions.  The key difference between this issue and the former issue is that the former assumes that race is a significant admissions factor (if not the predominant factor).  The issue in Fisher, however, asks a related yet substantially different question: can race be used at all in college admissions even if it is only a minor factor?  That is the question that will be answered by the Supreme Court. 

Since this may very well be the final chapter of affirmative action, it is only fitting that we discuss its history.  The term "affirmative action" was first coined by President John F. Kennedy's now infamous Executive Order #10925 issued in 1961 which stated that government contractors should:
"take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race, creed, color, or national origin."
When President Kennedy was assassinated a few years later, his Vice President, Lyndon B. Johnson ("LBJ"), assumed the role of president and continued Kennedy's efforts to pass the Civil Rights Act of 1964.  Upon signing it into law, LBJ had this to say about affirmative action:
[F]reedom is not enough. You do not wipe away the scars of centuries by saying: Now you are free to go where you want, and do as you desire, and choose the leaders you please. You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, 'you are free to compete with all the others,' and still justly believe that you have been completely fair.
This is significant because it represents the first time that the U.S. government actually acknowledged that the damage caused by its complicit role in slavery could not be undone by simply saying "our bad."  A general consensus formed around the idea that even though America had just passed a landmark Civil Rights Act, "affirmative" steps were still necessary to correct America's history of exclusion which had prevented Blacks and other underrepresented groups (including women) from having the same opportunities in education, employment, business and housing that Whites (in particular, White men) had enjoyed since the country's founding.  So the States took it upon themselves to start enacting their own state-based affirmative action laws which sought to correct past discrimination and increase diversity in schools and in the workplace.

But not everybody agreed that this was a good thing.

In 1978, a White student in California argued all the way up to the Supreme Court in Regents of the University of California v. Bakke that the affirmative action program used by the Medical School at the University of California (Davis) was unconstitutional because it used a quota system which set aside a certain number of seats for Blacks and Latinos.  He was right.  The Supreme Court ruled that, although affirmative action is constitutional, quotas are not.  Almost 20 years after that case, the state of California passed Proposition 209 which outlawed affirmative action once and for all in California.

In the same year that Prop 209 passed in California (1996), the 5th Circuit Court of Appeals ruled in the case of Hopwood v. Texas that the affirmative action program used by the Law School at the University of Texas at Austin was unconstitutional.  Although the school did not use a quota system, it did use a separate admissions system for Black and Latino applicants which gave them a substantial bump over White students with higher LSAT scores and higher GPA's (which represented 2 of the 3 criteria used by UT Law for admissions).  This case never made it up to the Supreme Court, but it was nevertheless overturned 7 years later when the Supreme Court decided Grutter v. Bollinger in 2003.     

In Grutter v. Bollinger, and its companion case Gratz v. Bollinger, two White female students (Barbara Grutter and Jennifer Gratz) sued the University of Michigan Law School and the University of Michigan undergrad, respectively, alleging that the affirmative action programs used by each school were unconstitutional.  In a landmark pair of decisions authored by then-swing voter Justice Sandra Day O'Connor, the Supreme Court found that the affirmative action program for the University of Michigan (undergrad) was unconstitutional but the Law School's affirmative action program was constitutional.  The undergrad program failed because it granted an automatic 20 points (out of 100 total) to Black, Latino and Native American students applying for admission.  Conversely, the Law School's program passed constitutional muster because even though it used race as an admissions factor, race was not given a significant weight.  It was merely one factor among several that the Law School used to create a diverse student body.  In 2006, however, Michigan voters approved Proposition 2 which banned affirmative action in the state of Michigan for good.  (Editor's Note: it is important to note that the Supreme Court waited over 25 years after the Bakke decision to revisit the issue of affirmative action in Grutter and Gratz).

Since UT's admissions process is squarely at issue here, we have to get into the details in order to have this debate.  UT has an interesting admissions program which admits the top 10% of all high school seniors within the state of Texas.  Whether you're Black, White, Asian, etc. it doesn't matter; if you're in the top 10% of your graduating high school class then you're in at UT.  Period.  Usually between 60% to 80% of the Freshman class at UT is admitted through this top 10% rule.  As you might have guessed by now, Abigail Fisher was not among the top 10% of her high school class (Editor's Note: clearly affirmative action had nothing to do with this fact).  For those folks like Ms. Fisher who did not graduate in the top 10% of their respective class, UT uses a holistic review system which is designed to look at each individual student's total package.

UT describes this holistic review system as follows:
An applicant’s [Personal Achievement Index ("PAI")] score is based on two essays and a Personal Achievement Score (PAS).  Essays are reviewed by specially trained readers, and are scored on a race-blind basis from 1 to 6. The PAS score ranges from 1 to 6 as well, and is based on holistic consideration of six equally-weighted factors: [1] leadership potential, [2] extracurricular activities, [3] honors and awards, [4] work experience, [5] community service, and [6] special circumstances.  The “special circumstances” factor is broken down into seven attributes, including socioeconomic considerations, and—as of 2005—an applicant’s race.  Race is one of seven components of a single factor in the PAS score, which comprises one third of the PAI, which is one of two numerical values (PAI and [test scores/grades]) that places a student on the admissions grid, from which students are admitted race-blind in groups. In other words, race is “a factor of a factor of a factor of a factor” in UT’s holistic review. - Def.'s App. Br. p. 13.
Did you catch that last part?  Just so that we're clear, race is literally 1/7th of 1/6th of 1/3rd of 1/2 of the holistic review system at UT.  Stated differently, race accounts for 0.39% of an applicant's total admissions score at UT for the students who are not automatically admitted via the top 10% rule.  Therefore, it is difficult to see how Fisher can claim that this admissions process excluded her solely because she is White.

So was Abigail Fisher rejected at UT because she was White?  Not likely.  The facts do not support that conclusion.  As discussed above, UT's affirmative action program does not give significant weight to race.  Moreover, Fisher applied to UT with a 3.59 GPA (out of 4.00) and an SAT score of 1180 (out of 1600).  These are not competitive academic credentials and, unfortunately for Fisher, account for 1/2 of the total holistic review score at UT.  Thus, she placed herself at a significant disadvantage by not performing better academically.  It should also be noted that conservative judges have ruled in favor of UT's affirmative action program and against Fisher at both the federal district court level and at the federal appellate court level (see Republican appointee Judge Sam Sparks in the Western District of Texas and Republican appointees Judge Emilio Garza and Judge Patrick Higginbotham in the 5th Circuit Court of Appeals who all voted against Fisher).

Nevertheless, despite all of these facts, the Supreme Court is expected to strike down UT's affirmative action program.  Why?  For starters, Sandra Day O'Connor retired from the Supreme Court and was replaced by conservative Justice Samuel Alito.  Second, Justices Clarence Thomas and Antonin Scalia...enough said.  Third, Justice Kennedy (aka the "swing voter") has never ruled in favor of an affirmative action program.  Fourth, progressive Justice Elena Kagan has recused herself from the case due to her prior involvement as Solicitor General (reason #1,231 why President Obama should have picked somebody else).  And lastly, it is no secret that Chief Justice John Roberts has taken the position that any use of race, even if it is used to ameliorate past discrimination, is unconstitutional. 
"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."
- Chief Justice John Roberts, Parents Involved in Community Schools v. Seattle School District, 551 U.S. 701 (2007).
Therefore, you can probably expect to see a 5-3 decision in favor of Fisher.

If (when?) the Supreme Court rules against affirmative action in Fisher it will end the use of affirmative action in all state schools across the United States because the certified question before the Court in Fisher is:
Whether this Court’s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Grutter v. Bollinger, 539 U.S. 306 (2003), permit the University of Texas at Austin’s use of race in undergraduate admissions decisions.
UT's use of race is so narrow (0.39% of an applicant's total score) that a ruling striking it down is effectively saying that race cannot be used in admissions at all.  Indeed, the Court may just come straight out and say that exactly.  If that should happen, the impact on our nation will be significant to say the least.

Whether you agree or disagree with the idea of affirmative action, there is a legitimate question underneath all of the controversy that is worthy of our discussion.  That question is how do we move forward as a nation and realistically deal with America's race problem?  Do we simply do nothing and hope that things work themselves out?  Or do we agree that the solution will require some level of effort on our part?  

Both sides of this debate were captured quite well during a recent discussion between actress Kerry Washington and CNN contributor Will Cain:

1. Will the Court strike down affirmative action?
2. Does America still have a race problem in terms of access to opportunities?
3. If your answer to #2 is "YES" then what is an acceptable solution to both sides if affirmative action is eliminated?
4. Does affirmative action harm Black and Latino students?
5. What do you predict will happen if affirmative action is ended?
6. Who makes the better case, Kerry Washington or Will Cain?
7. Was Abigail Fisher excluded from UT because she was White?
8. Is UT's admissions process fair to everybody? 
9. Is the fact that the Court is revisiting the issue of affirmative action after only 9 years telegraphing its intentions to overrule the 2003 Michigan cases? 
10. Should the Federal Government be in the business of telling the States what type of Affirmative Action plans the States can or can't use?
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