Abigail Fisher’s application to the University of Texas at Austin in 2008 was rejected. Had she been black or Hispanic, she almost certainly would have been accepted — and so she and another student in a similar circumstance filed a lawsuit. So far, the federal courts have ruled against them, reinforcing the odious notion that colleges can discriminate on the basis of race — as long as the right people are being discriminated against.
But that may soon change.
Fischer’s lawyers filed a petition with the Supreme Court on September 15 asking the Court to review Fisher v. University of Texas. If the case is accepted, the Court could clarify — and, more important, limit — how a university may consider an applicant’s skin color and ethnicity for admissions. Since hundreds of colleges use “preferences” (the politically correct term for discrimination), clarification would be a welcome outcome.
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The jurisprudence of such racial discrimination has been controversial since 1978, when Regents of the University of California v. Bakke was decided by a fractured Supreme Court. In Bakke, the Court disallowed the use of racial quotas in the admissions process at the Davis Medical School, but Justice Lewis Powell left the door open to “a properly tailored affirmative action program designed to promote diversity.” For years, legal scholars debated what a “properly tailored” affirmative-action program entailed.
It wasn’t until 2003 that the high court revisited the question in a pair of cases from the University of Michigan (Grutter v. Bollinger and Gratz v. Bollinger) challenging the institution’s law-school- and undergraduate-admissions policies.
The Grutter opinion held that a racially diverse student body was so beneficial to the educational experience that there was a “compelling state interest” in lowering the admissions bar for some racial groups, and raising it for others. Still, the justices underscored that this regrettable opinion was not a blanket endorsement of the use of race in admissions. Any consideration of race must be carefully and narrowly crafted and executed.
One of the central tenets of Grutter requires that, before putting a thumb on the race scales, a school must pursue a “serious, good faith consideration of workable race-neutral alternatives that will achieve the diversity the university seeks.” Unfortunately, in the real world, few if any competitive universities (dominated by liberal administrators) have ever implemented race-neutral programs to replace racial preferences. But Texas schools are unique, and that is why the higher-education community is watching the Fisher case so closely.
In 1996, the Fifth Circuit Court of Appeals outlawed the use of race in admissions by any Texas university. In response, the state legislature passed a law that allowed any student in the top 10 percent of his high-school class to attend any public college in the state.
This boosted minority enrollment (and enrollment from rural areas) at the University of Texas–Austin (UT). In fact, enrollment of African Americans and Hispanics surged, surpassing minority enrollment levels achieved with race-based admissions. Tellingly, Larry Faulkner, the university’s president at the time, wrote that “the Top 10 Percent Law has enabled us to diversify enrollment at UT Austin with talented students who succeed.” Faulkner added that by 1999, enrollment levels for blacks and Hispanics had returned to the levels before the Fifth Circuit decision; further, minority students were earning higher grade-point averages and had better retention rates.
Yet on the very day that Grutter was decided, President Faulkner announced that UT would reintroduce race-based admissions. UT has defended its decision by arguing that while minority enrollment was up because of the Top 10 Percent Plan, it still does not mirror the overall demographics of Texas. Furthermore, UT asserts that individual classrooms still lack a “critical mass” of blacks and Hispanics, so reintroducing discriminatory preferences is justified.
Both arguments were attacked by Chief Judge Edith H. Jones, who wrote a dissent on behalf of seven out of 16 of her fellow judges. The “U.S. Constitution abhors racial preferences,” she said, adding that allowing UT to seek classroom diversity through racial preferences was “pernicious.” She questioned whether UT should be allowed to “add minorities until a ‘critical mass’ chooses” particular subjects such as nuclear physics or applied math. This was opening “the door to effective quotas in undergraduate majors” based on race.
"Preferences" is a pretty weak euphemism for discrimination. Think about it; a college prefers to admit Blacks and Hispanics rather than Anglo, Euro, or Asian applicants? Sounds even more arbitrary than "discriminates."
I'm a Black American, and it was Affirmative Action more than any issue that turned me Republican.
Had the 10% Law been the standard for Black communities since the '60s, it would have seriously curbed the collapse of Black communities. Upwardly-mobile aspirant parents would have had a disincentive to relocating out of the Black community in order to give their children an education that would qualify them for college. Black communities would have retained, quite literally, WEB DuBois' "Talented Tenth" demographic. One can only imagine how this in turn would have impacted everything from teacher morale to the attitudes of police toward the communities they patrolled.
Racism is never appropriate, no matter what race is being maligned.
In addition to all the "fairness" issues that policies like these violate, it will likely also have some unintended consequences.
In this case, Minorities are held to a lower standard for entrance to a major university. White students must meet a higher threshold and must have a better GPA and higher SAT/ACT scores.
I'm afraid that this has caused people to shift their opinion somewhat when choosing a doctor, lawyer, architect, etc... There may be propensity for people to choose a white professional, for the simple reason that the white professional had to work harder and/or is smarter than their minority counterparts to get to the place where they are today.
Outstanding comment conservator. When a professional is needed (Dr.,etc.) it makes sense to choose the person who has worked harder and has higher qualifications. If that person is white and graduated from a school with lower standards for blacks, so be it.
No danged kidding! As blacks are matriculated, graded, and graduated on a preferential basis, you are guaranteed that the average white doctor will be better-qualified than the average black doctor. If you want to be PC, go ahead. But I want to be there when you need brain surgery.
I really hate this race classification stuff. I always write human on any application or form requesting information about race.
I even did this on the Census, which makes me a desperado of sorts.
If forced to give my race I would say it is something other than what is perceived, and then force the questioners to prove different. They could set up race committees that research your genetic history, even drawing blood samples. Then they could decide if even a drop of blood from another race would contaminate your dominate designation.
Swab the inside of your mouth and send it to a good genetics lab. They'll let you know what race (or combination of races) you are. Or is DNA a social construct, like sex?
Did the student body not reflect the racial demographics of the state, or of the high school graduates in the state? Statistically, you typically have to define the proper pool. Also, did non-resident students effectively substitute for in-state students? How does one square that with testing the composition of the student body with the composition of the state?
Finally, what is the legal standard? Is it enough for the school to simply defend its program? Or, does the school not have to defend the actual decisions to not admit the student-plaintiffs? What's the applicable law here?
I've posted on this issue in the past and still can't overcome the objection that you simply cannot define race with any degree of legal precision. What makes someone black? Or white? Is Barack Obama black or white? Do we use the one-drop rule or the less stringent Nuremburg Laws of Nazi Germany?
Personally, I'm whiter than the president of the County Monaghan chapter of the Riverdance fan club, but does that mean if I identify myself as black to obtain admissions preferences, some bureaucrat will challenge me?
Can someone please provide me with a definition of race that will meet legal scrutiny?
Completely tangential, but, I hope amusing: Bob Jones University used to have (and may still have? -- don't know) a policy that prohibited racial discrimination, but also prohibited students of different races from dating one another. Equal, and not separate, except for dating. So what about students who were of mixed race? Well, if you were one of them, after you were accepted to the school you were required to state on a form which race you identified yourself as. Pretty freaking hilarious. I can see some eurasian guy writing a letter to Student Affairs, "Purely out of curiosity, could you tell me which racial group has the highest female to male ratio? Not that it will impact my decision ...."
If there is going to be "Affirmative Action" & other such racially-based quota systems, why aren't they at least being means tested? So Obama (et al.) gets to check a "preference" box on his kid's college application, and a poor white family doesn't?
I can deal with the discrimination. I find the lies and evasions and lack of transparency surrounding affirmative action and "diversity" to be more troublesome.
I think this is exactly right and well said. Discrimination is unjust but can be overcome with superior effort, morality and intelligence.
Discrimination weakens the patronized, not the victimized. Everyone involved knows that "diversity" is a joke and a lie -- it is the farthest thing from what the leftist academics have created, which is a self-perpetuating leftist propaganda machine.
Good point. If the government is going to endorse racial preferences, let them bloody well say something like, "Blacks got a raw deal because of slavery and Jim Crow and we're going to give them some advantages, and if you don't like it, that's tough."
Having a son at the UT Austin campus, and having visited that campus a number of times, I can safely tell you that the University's rationale is a crock, pure and simple. Racial diversity is a code for ideological diversity; the 10% rule has more than compensated for any previous historical lack of minority admissions. In fact, it appears to me that the so-called "minority" admissions comprise mostly foreign students.
The truth is, this notion of "increasing diversity" is bogus, because it doesn't take more than the exposure of one student to the ideas and cultures of a few students to create the "perspective" necessary in an educational context. It is the exaltation of quantity over quality, and discriminates in a pernicious and vicious fashion.
Perhaps the rationale applied to the Grutter case for evaluating the propriety of race-based criteria might be applied to the cases coming up on same-sex marriage.
Perhaps the proponents of acknowledging a right to marriage between persons of the same sex might be required to make a showing of just why such unions are beneficial to diversity, and how much of a benefit such diversity might have on the body politic.
As a Korean born American, I don't understand why the universities do not apply affirmative action to athletics ...I am pretty sure Asian Americans are under represented in Division I basketball and football. Could it be that athletic scholarships are merit based, regardless of race?
