Is this the Beginning of the End for Affirmative Action?

UnknownFisher v. University of Texas at Austin (2011) serves as an illustration of how the intersection of race and education continues to present challenges for both legal and educational communities in the 21st century. Similar to the petitioners of Bakke (1978) and Grutter (2003), Abigail Fisher, a White woman, also argued against using race as a means to achieve diversity within the student population of the university. Although Fisher did not graduate in the top 10% of her high school class, she argued that UT’s denial violated her Fourteenth Amendment right to equal protection because she was denied admission to a public university in favor of minority students with lesser credentials.

Due to the fact that the court denied Fisher an en banc hearing by a 9-7 ruling, her lawyers filed a petition seeking review by the U.S. Supreme Court in September of 2011. By October 2012, Fisher was on the calendar of the Supreme Court. The Court declined to adopt Fisher’s argument, ruling that her continued pursuit of her claim was no longer viable. According to UT, had it exclusively employed race-neutral admissions, Fisher would not have been admitted not only due to the fact that she did not graduate in the top 10% of her class, but due to UT’s competitive individualized review of applications, which included an Academic Index (AI) and a Personal Achievement Index (PAI). The AI consists of grades and standardized test scores and “race is considered in a contextualized fashion only in the PAI” (Fisher v. University of Texas-Austin, 2013). Fisher argued on the assumption that her PAI was lower because of race. UT stated that Fisher would have still been denied even if she had a “perfect” PAI. In a decision of 7-1, the U.S. Supreme Court vacated their decision on June 24, 2013, sending Fisher back to the Fifth Circuit Court of Appeals, stating that it failed to apply “strict scrutiny” (Fisher v. University of Texas-Austin, 2013).

Arguments for Fisher continued on November 13, 2013 at the U.S. Court of Appeals for the Fifth Circuit. . . . some sources have reported that the hearing examined UT’s race-conscious admission policies, race-neutral alternatives, and how the definition of critical mass is defined and what should take place after it has been reached. The Court’s examination also reflected on UTs history and experience in developing its admissions policies in regards to constitutionality. From 1997 to 2004, UT experimented with multiple admission approaches in efforts to increase minority attendance from high school students in Texas. During this time only 3-4% of students admitted were African American. After UT employed the Top Ten Percent rule, between 2005 and 2008 enrollment of African Americans increased considerably by 28% (Fisher v. University of Texas-Austin, 2013).

McCall, J. M. (2015, p. 16)

After hearing Fisher’s arguments again on November 13, 2015, the Fifth Circuit Court of Appeals, in a 2-1 decision, ruled in favor of UT on July 15, 2014. Following the lower Courts’ refusAl to rehear the case again, Fisher petitioned for the SCOTUS to hear her case on June 29, 2015. She was then granted yet another opportunity to appear on the floor of the U.S. Supreme Court. So, that brings us to December 23, 2015, just fifteen days after the Supreme Court heard once again the oral arguments of both Fisher and UT. My interpretation of the arguments and commentary of the justices, the case was simply is a repeat its first appearance in the Supreme Court in 2013. Taking into account the latter, and analyzing the current status of a American college system that is ambiguous in its interpretation of diversity and ways to achieve it, I am perplexed as to why this case has gone on so long and why it made to the floor of the SCOTUS—again.

From my point of view, Fisher’s case and her so-called dissatisfaction UT’s admission policies seems to be a petty cry of a young child. Despite avery poor argument on the part of her legal team, her use of white privilege took center stage. Her initial argument was that she was denied admission because UT favored minority students whose credentials were inferior of her own. Of the 2008 group of students that were admitted into UT’s law school, 10% of those were minority students, while the rest were white. Also, let’s not forget that with her AI and PAI scores as well as the fact that she did not graduate in the 10% of her high school graduating class, Fisher wouldn’t have gotten into UT. While Fisher went on to graduate from what many are referring to a lesser law school, Louisiana State University, she maintainer her plight to justice. My speculation about Fisher is that at the time of her applying to UT’s law school, she was at best mediocre; average, ordinary—okay. She didn’t stand out. What I find most unfortunate about her time vested in this case is that she has not progressed. I mean, she was a law student. Did she not at all encounter critical race theory (CRT) in a course while attending UT? Or the work of Derrick Bell, the father of CRT? Similar to other theoretical lenses, CRT could have provided her with some insight into her own racial conundrum. Instead of digging her heels in and not blaming her rejection on the notion that minority students took her place, she is attempting to play the race card, despite the fact that an overwhelmingly percentage of her white peers outperformed her just in the application process. Fisher hails from one of the most affluent communities in Texas, Sugarland. It is one of the smaller communities outside of Houston, Texas where the median household income is just shy of $105,000. However, if we drove just northeast of Sugarland, to Aldine, we would find that the income is approximately $40,000. Fisher’s arguments aren’t about justice, they appear to be more about confronting a system that did not, at the time, entertain her privilege.

Like many Americans, I agree that we must confront issues of race head on.
However, what I don’t endorse is how individuals such as Fisher conveniently place themselves and their inadequacies on the coattails of justice to get their way.

But, hypothetically speaking, let’s say that the Supreme Court will rule go on to rule in favor of Fisher. What sorts of implications would unfold? Obviously, change. But, similar to previous court rulings of the SCOTUS,  the response to act will be slow. On a side note, however,r Fisher and her supporters will be elated and many will walk away thinking, “Finally, the system got it right.” However, the question or an important question will be, “What now?” If the law of the land boils down to institutions having to do away with the use of race as a factor in their admission policies, how will each state and/or institution respond? Or, will they respond? Yes, while some states and their colleges and universities have performed decently in efforts to achieve diversity, I’m sure that if we looked closely at these institutions that diversity would be less identifiable. I think we should consider the types of changes that would take place not just education and the obstacles that would accompany those changes, but we should also consider the effects it would have in civilian, government, and military sectors—talk about a big wrinkle ripple in time.

Now, Let’s say that the SCOTUS rules in favor of Fisher and the ruling—if enforced—forces institutions to take responsibility for achieving diversity without the use of race and they actually are successful. That would be amazing, right?! Besides the fact that, in regards to educational reform, we never get anything right the first time, there’s just one thing … we can not not talk about race without discussing other intersections of identity, such as culture, class, socioeconomic status, and so on, and vice versa. On the other hand, think about what could possibly emerge from a ruling that would be in favor of UT. “What would happen?” Universities and colleges would perhaps rejoice because they wouldn’t have to do any additional work that would require them to challenge their current policies or create new ones. Many folks might say, “Great,” without considering some of the points raised earlier in this post. Instead of continuing to critique policy in efforts to improve the experiences of a larger demographic, many folks will be complacent. Oh, but Fisher would be unhappy, feeling that she was robbed of a just resolve.

Now, let’s move beyond Fisher’s tantrum and the hypotheticals, and into a more serious inquiry regarding affirmative action. Is it important? Sure. I believe it is important because most institutions probably wouldn’t impose purposeful strategies to achieve diversity. As I mentioned to a colleague, affirmative action is like a parent standing over a child, making sure that they tackle their veggies before digging into their dessert. Remove affirmative action and the institution will do exactly what it pleases, without consideration of creating a healthy environment for all students. I would go on to say that even with affirmative action policies in place, diversity is almost non-existent in many colleges and/or it is difficult to achieve due to location, diversity of the state in which the institution resides, and impenetrable structures that mock race-based admission policies. If anything should be done, I think there should be a critical assessment of each states’ admission policies, including those institutions employing open-admission policies. Well, perhaps you are thinking that open-admission schools do not encounter issues of race on their campus. I would tell you that they most likely do. I speculate that because they get to “skip over” some complex workings of navigating diversity, they deprive themselves of acquiring knowledge that would inform not only annual counts of diversity, but their student, administrative, and faculty populations. In this case, I contend that exemption is not the best approach. In order for institutions to achieve diversity, we must consciously reflect and define diversity as it pertains to not only the students we currently serve and don’t, but also as it appears on the national and international stage.

We can no longer sit back and play the numbers game or as arguments in the Fisher case suggests, the critical mass game. If we are to assess critical mass by simply checking to see if minority students feel isolated or they have no voice, I will save us the trouble by answering, “Yes, to all of the above.” Until we confront, deconstruct, and actively invest in serving all students with the intention to enrich our society, we will lose—big time. Our goal can no longer be one-sided or based on a hidden agenda of “What can you do for my university?” We must consider that race is not an isolated construct; therefore, when we speak race, consider it, analyze it, we must also embrace both cultural and social pieces that influence a greater whole. Throughout the oral arguments, no one really mentioned these pieces and how they would enhance student awareness of self and the world around them. However, these issues should not be left to the judicial and legislative system to modify and also enforce. Experts from sociology, education, and psychology, to name a few, should be included in our aspirations to move to a more inclusive and diverse era.

Now. While I stated that affirmative action is important. It is also essential to maintaining predominantly white structures. I understand affirmative action to not only be a mechanism to fulfill a goal of diversity, I also understand it, on the other hand, to be a complex tool used by systemic structures to mask the ugly truth—not much has changed. By employing affirmative action policies, institutions are at a distance from interrogating their own spaces as well as their actions, instead, they champion and endorse a color-free approach without protest. Eduardo Bonilla-Silva contends that that approach has transpired into the new racism—colorblindness. Am I condemning the efforts of those who worked through blood, sweat, and tears to obtain ground that would situate us a little closer to justice? Absolutely not. I am simply calling it out. Affirmative action, as it stands now, is a double-edged sword and those who were intended to benefit are rarely its beneficiaries.

Is this the beginnings of the end for affirmative action in the U.S.? Maybe. Maybe not. Like many people, I would like for us to eventually achieve our goal of being able to hold ourselves accountable in the face of diversity without the assistance of the Court or other governing bodies. However, the race problem in America cannot be held hostage by devices that create illusions that appear to do one thing while they are doing another.


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