Phi Beta Cons

Arguing affirmative action

I heard some of the argumentation in the Fisher affirmative-action case before the Supreme Court. The evasiveness of the lawyers defending the University of Texas was a thing to amaze. When Kennedy and other justices tried to pin them down on the meaning of a “critical mass” of minorities, the lawyers could only say that the university would decide when it had been reached because, of course, they couldn’t admit to any kind of quota.

The reason for a “critical mass” of minorities was said to be to avoid stereotyping. For example, it seems that the 10 percent plan, which lets in the top 10 percent of every high school in Texas, yields too many minorities from relatively poor backgrounds, and more minorities are needed from affluent backgrounds in order to avoid the stereotype of all minorities’ being poor. Since the affluent minorities are presumably attending more competitive high schools, it is harder for them to be in the top 10 percent that gets automatic admission.

So affirmative action is needed for the affluent. How’s that for an irony.  But when Kennedy, Alito, and Scalia pressed that clearly race was being used as the deciding factor, since the still-mysterious “critical mass” of minorities is the goal, the lawyers repeatedly insisted that race was not the deciding factor, only one of many factors, including coming from a single-parent family. (Yes, coming from a single-parent family is now on a list of official plus factors in admissions to UT-Austin. Pity the poor students whose parents were foolish enough to marry and stay together.) The justices continued, whether it’s a poor minority or an affluent minority, the deciding factor is that it be a minority. And the lawyers countered, no, race is just one of many factors. But somehow this one factor must yield the ”critical mass” needed for diversity. Affirmative-action supporters occupy shifting ground, arguing for the importance of race in admissions and yet insisting that no one is being chosen for that reason.         

A question — the lawyers seemed again to be invoking the “educational benefits” of diversity, in the sense of proportional representation of groups. That is being challenged by the plaintiff, is it not? It might have been one of the weaknesses of the plaintiff’s case in Grutter, perhaps unavoidable at the time, to concede that diversity in that sense brings educational benefits, but to hold that there are other ways to achieve it aside from discriminating against whites and Asians. But we see in Fisher that even with the 10 percent plan bringing in numerous minorities, the bean counters are not satisfied.

Sotomayor tried to defend the use of AA in order to change stereotypical attitudes by asking, hypothetically, if all the admitted minorities chose phys-ed as a major, could you understand why the university would want to take measures to go beyond the 10 percent plan to avoid that. But the plaintiff’s lawyer answered well — what they decide to study is a matter of their own choice. The exchange gave you a sense of how much engineering would be needed to attain proportionality or “critical mass” in every major and every classroom, as the UT plan aims to do. Ginsburg or Sotomayor suggested that a minority majoring in physics or something demanding like that would challenge stereotypes, but then you had to wonder about the prospects of a physics major who does not make the top 10 percent of his high school and needs further AA to be admitted.    

Another interesting point is that plaintiff Abigail Fisher is asking for her $100 application fee to be refunded. Sotomayor countered that everyone has to pay the application fee regardless of whether they are admitted. Abigail’s lawyer responded that one pays in good faith expecting a fair process, but that the process at UT was not fair toward her as a white person.


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