Abigail Fischer, SCOTUS, And What The Rhetoric About ‘Reverse Discrimination’ Ignores

CREDIT: Susan Walsh, AP

Abigail Fisher, the Texan involved in the University of Texas affirmative action case, and Edward Blum, who runs a group working to end affirmative action, walk outside the Supreme Court in Washington, Wednesday, Oct. 10, 2012.

Affirmative action has been around since the 1960s, beginning when President John F. Kennedy signed an executive order requiring government contractors to “take affirmative action to ensure that applicants are employed, and employees are treated during employment, without regard to their race, creed, color or national origin.” Gender was later added during the Lyndon B. Johnson administration.

Since then, diversity at colleges has grown, with the percentage of black college students rising by 5 percent and the percentage of Latino college students rising by 11 percent between 1976 and 2012, according to U.S. Department of Education data. Not only does affirmative action provide students of color with better access to a college education, but it also helps increase the diversity at colleges in a way that’s beneficial for everyone and that increases civic engagement later in life, according to a 2011 Notre Dame University study.

But now, depending on how the Supreme Court rules on the pending Fisher v. University of Texas at Austin case, these gains may be under threat. Supporters of race conscious affirmative action policies are concerned that universities may soon not be able to consider race in admissions at all.

The case before the Supreme Court

The case centers on Abigail Fisher, who brought a lawsuit against University of Texas at Austin in 2008. Fisher, who is white, did not receive admission to the college, where students were admitted through a “Top Ten Percent Plan” that automatically admits students in the state that were in the top 10 percent of their class. The plan allows for racial diversity because the top 10 percent of a predominantly black and Hispanic school will likely be students of color. Essentially, it relies on the segregation of K-12 schools to achieve diversity at the college level.

When Fisher was considered for admission, her application was evaluated based on her grades and test scores as well as more personal qualities, such as leadership, family background, socioeconomic factors, and race. But she didn’t get in. (To read more about why Fisher didn’t receive admission, ProPublica breaks down the reasons for her rejection from the college.)

Fisher argued the university shouldn’t be allowed to consider race one of the multiple factors that determine who’s accepted to a college, and her case has made its way up the U.S. Fifth Circuit Court of Appeals. The conservative court was expected to strike down the policy, but instead upheld the program in July of last year, leaving the nation’s highest justices to determine the ultimate fate of the case.

Some experts — including ThinkProgress’ Ian Millhiser — argue that the case may have no business coming before the court since Fisher can no longer directly benefit from the ruling, given that she has long since graduated college.

Nonetheless, the U.S. Supreme Court will hear oral arguments in the case on Wednesday.

Protestors in support of affirmative action, gather outside the Supreme Court in Washington, Tuesday, Oct. 15, 2013. The Supreme Court is hearing a case Tuesday after affirmative action opponents persuaded Michigan voters to outlaw any consideration of race after the Supreme Court ruled a decade ago that race could be a factor in college admissions.

Protestors in support of affirmative action, gather outside the Supreme Court in Washington, Tuesday, Oct. 15, 2013.

CREDIT: Susan Walsh, AP

Why affirmative action is so important

If Fisher wins her case and race conscious affirmative action is no longer used in college admissions, it would ultimately reduce the number of students of color attending these institutions, according to Sigal Alon, and associate professor in the department of sociology and anthropology at Tel-Aviv University and author of the upcoming book, “Race, Class, and Affirmative Action.”

Alon’s research finds that a race-neutral, class-based system would reduce the number of African American students in elite American universities by as much as 50 percent. For Hispanic students, 25 percent fewer students would be admitted. Socioeconomic status is not a substitute for race because black and Hispanic people make up only a small fraction of all low-income youth and a much smaller fraction of higher-achieving youth, according to Alon.

“Within the general population, the possible overlap between income inequality and other facets of stratification is more substantial, but this is not the population that affirmative action policy at elite institutions targets,” Alon said. “It is true that only a quarter of black and Hispanic students at elite institutions are poor and only half were the first in their family to attend college. But, black and Hispanic students, especially those who received an edge from affirmative action, are less affluent, on average, than their white and Asian counterparts.”

“Without race-based affirmative action, the level of economic diversity at elite institutions, minimal as it is, would be even lower,” she added.

A common argument against affirmative action is that middle class black students aren’t as disadvantaged as impoverished white students. However, this argument ignores the history of slavery, housing discrimination, employment discrimination, financial services discrimination and racial profiling by police that has undermined black Americans’ current class mobility compared to white Americans’, even among those who live in poverty.

Even middle class white populations live in better neighborhoods than middle class black populations, thus benefiting from a better school system and other advantages, so a place-based system would be fairer to black students than simply counting income or other limited economic factors.

“They are deserving of the edge in admission because of discrimination, stereotypes and segregation,” Alon said. “Despite the great achievements of the Civil Rights movement, including affirmative action in higher education and the workplace, blacks still suffer the ramifications of centuries of discrimination.”

And though Asian Americans and Pacific Islanders are often portrayed as “model minorities” with greater economic advantages, many subsets under the umbrella of “Asian” — such as Cambodian and Laotian students — face major economic disadvantages and have lower graduation rates. Political efforts to convey Asian American and Pacific Islander students as the victims of affirmative action have persisted since the 1980s.

What the rhetoric about ‘reverse discrimination’ ignores

Opponents of affirmative action policies like Fisher typically claim that these policies amount to “reverse discrimination” by unfairly disadvantaging white applicants. Fisher’s whole argument rests on the assumption that she was prevented from gaining admission to the college of her choice because her application was passed over due to her being white.

The concept of “reverse discrimination,” however, assumes that white applicants and applicants of color are on the same level as far as economic and social advantages. It ignores a long history of subjugation of people of color in the United States.

One factor in college admissions rarely discussed in conversations about fairness is the role of legacy admissions, which advantages students whose parents or grandparents have attended the college they are applying to. This practice ensures that wealthy, white students continue to be given priority — often over students with higher academic performance, certain desirable character traits, such as leadership skills or more “well rounded” areas of interest. This should, in theory, enrage the same people who are concerned about what they call “unfair advantages” and yet it is rarely discussed in conversations about affirmative action policies.

People walk at Princeton University in Princeton, N.J., Monday, Dec. 9, 2013.

People walk at Princeton University in Princeton, N.J., Monday, Dec. 9, 2013.

CREDIT: Mel Evans, AP

“College universities have long accepted people who had relatives who went to that college or university,” Erwin Chemerinsky, dean of the School of Law at University of California, Irvine, pointed out last week at a debate over whether the equal protection clause forbids racial preferences in state university admissions. He noted that if people who oppose race conscious affirmative action consider many black and Hispanic students to be an academic “mismatch” for selective universities, they should also consider legacy admissions a problem, but this particular point was never addressed by those arguing against race as one of many factors considered.

The role of legacy in admissions clearly disadvantages those from a less wealthy background and those who aren’t white. Only 6.7 percent of underrepresented racial groups such as black, Hispanic and Asian students, make up the legacy pool.

“Selective colleges have largely ignored the increasing class stratification in America,” Anon said. “They have not broadened their concept of diversity — and, accordingly, their admission practices — beyond demographic diversity. In hindsight, this appears to be a historic mistake on their part, one that may bring about the total prohibition of race and ethnicity as criteria in admissions.”

This issue has been evident for some time by now. It has been a decade since the release of Daniel Golden’s The Price of Admissions, a well-publicized expose on the influence of money, fame, athletics, and legacy on the admissions process. But since then, there has been no indication the influence of legacy students, celebrity students, or students who choose sports like polo, fencing, and rowing — which are less popular in public schools — has waned.

According to The Daily Princetonian’s analysis of universities Common Data Sets, all major eight Ivy league universities still consider legacy as factor in the admissions process. Princeton’s legacy students have made up between 35 percent and 42 percent of enrolled classes from the class of 2000 to the class of 2015. The numbers were very similar for Harvard University, which has a legacy acceptance rate around 30 percent in the same time period and Yale’s legacy students ranged between 20 and 25 percent.

It isn’t simply that legacy students are given a slight advantage at selective colleges — they’re actually given a 23.3 percentage-point increase in the probability of admission, according to a 2011 Harvard University study, which looked at the influence of legacy on admissions at 30 highly selective colleges.

What’s next for affirmative action

Tabrian Joe, a student at Western Michigan University, and other protestors in support of affirmative action, gather outside the Supreme Court in Washington, Tuesday, Oct. 15, 2013.

Tabrian Joe, a student at Western Michigan University, and other protestors in support of affirmative action, gather outside the Supreme Court in Washington, Tuesday, Oct. 15, 2013.

CREDIT: Susan Walsh, AP

The last U.S. Supreme Court action on Fisher, when the justices voided a lower appellate court ruling and sent the case back to the Fifth Circuit court for consideration, was very narrow. The decision exercised skepticism toward the application of affirmative action, even though the standard of race consciousness was technically left in place.

Justice Anthony Kennedy ultimately guided the trial court judge to be more skeptical toward the university in its application of this standard. He wrote:

The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity. If “‘a nonracial approach . . . could promote the substantial interest about as well and at tolerable administrative expense,” then the university may not consider race.

Although Kennedy has generally been conservative in cases that involve racial discrimination, he has surprised court watchers by keeping safeguards in place against housing discrimination. However, it’s more likely that he will not support race conscious admissions as the court considers the merits of Abigail Fisher’s case, ThinkProgress’ Ian Millhiser explained.

And if Kennedy rules the way that court watchers are expecting, and the University of Texas’ limited consideration of race and ethnicity is deemed unconstitutional, it will be a major step back in the fight for educational equity.

Affirmative action policies are especially important at a time when low-income students, many of whom are students of color, are missing out an the opportunity to receive a quality education — and in many cases, are attending for-profit colleges that leave them with student debt they struggle to pay off due to dim career prospects after graduation.

That helps explain what may seem like a counterintuitive finding: Research shows that higher education often ends up actually reinforcing inequality, rather than giving disadvantaged students a chance to reach the potential economically advantaged students and white students have had since childhood.

Thanks to the high visibility of conversations about access to higher education and student debt, the debate isn’t likely to go away anytime soon.

“The rising discontent with affirmative action is fueled by the fierce battle over the distribution of an increasingly scarce, and ever more coveted, resource: a seat at an elite college,” Alon said.