Fisher v. University of Texas – A Full Primer on the Modern State of Affirmative Action

Fisher v. University of Texas – A Full Primer on the Modern State of Affirmative Action



In just a few hours, around 10am ET, the Supreme Court of the United States should be unveiling it’s decision for Fisher v. University of Texas, the first landmark case on affirmative action since 2003’s Grutter v. Bollinger.

In taking this case, just 10 years after a landmark decision, the Supreme Court clearly has little intention of simply affirming it’s Grutter ruling and moving on. Additionally, oral arguments for this case were delivered in October of 2012. This decision is, by far, has the largest gap between oral argument and decision for this term. For comparison, the Affordable Care Act decision took four months after oral arguments to be decided, meaning something is happening behind the chambers that is holding up the fate of affirmative action.

So before the decision is rendered, bring yourself up to speed on exactly what this case is really about, the confluence of events leading up to this case, the state of affirmative action in America, and what Sonic Eclectic’s prediction for the case is.

What Fisher v. University of Texas is Really About

When the NAACP began challenging Jim Crow laws across the South, it knew that, in the battle for public opinion, the particular plaintiffs mattered as much as the facts of the case. The group meticulously selected the people who would elicit both sympathy and outrage, who were pristine in form and character. And they had to be ready to step forward at the exact moment when both public sentiment and the legal system might be swayed.

That’s how Oliver Brown, a hard-working welder and assistant pastor in Topeka, Kan., became the lead plaintiff in the lawsuit that would obliterate the separate but equal doctrine. His daughter, whose third-grade innocence posed a searing rebuff to legal segregation, became its face.

Nearly 60 years after that Supreme Court victory, which changed the nation, conservatives freely admit they have stolen that page from the NAACP’s legal playbook as they attempt to roll back many of the civil rights group’s landmark triumphs.

In 23-year-old Abigail Noel Fisher they’ve put forward their version of the perfect plaintiff to challenge the use of race in college admissions decisions.

Publicly, Fisher and her supporters, chief among them the conservative activist who conceived of the case, have worked to make Fisher the symbol of racial victimization in modern America. As their narratives goes, she did everything right. She worked hard, received good grades, and rounded out her high school years with an array of extracurricular activities. But she was cheated, they say, her dream snatched away by a university that closed its doors to her because she had been born the wrong color: White.

The daughter of suburban Sugar Land, Texas, played the cello. Since the second grade, she said, she dreamed of carrying on the family tradition by joining her sister and father among the ranks of University of Texas at Austin alumni.

And the moment for her to lend her name to the lawsuit might never be riper: The Supreme Court has seated its most conservative bench since the 1930’s. The Court is expected to issue a decision any week now in what is considered one of the most important civil rights cases in years.

On a YouTube video posted by Edward Blum, a 1973 University of Texas graduate whose nonprofit organization is bankrolling the lawsuit, she is soft-spoken, her strawberry blond hair tucked behind one ear. Not even a swipe of lip gloss adorns her girlish face.

“There were people in my class with lower grades who weren’t in all the activities I was in, who were being accepted into UT, and the only other difference between us was the color of our skin,” she says. “I was taught from the time I was a little girl that any kind of discrimination was wrong. And for an institution of higher learning to act this way makes no sense to me. What kind of example does it set for others?”

It’s a deeply emotional argument delivered by an earnest young woman, one that’s been quoted over and over again.

Except there’s a problem. The claim that race cost Fisher her spot at the University of Texas isn’t really true.

In the hundreds of pages of legal filings, Fisher’s lawyers spend almost no time arguing that Fisher would have gotten into the university but for her race.

If you’re confused, it is no doubt in part because of how Blum, Fisher and others have shaped the dialogue as the case worked its way to the country’s top court.

Journalists and bloggers have written dozens of articles on the case, including profiles of Fisher and Blum. News networks have aired panel after panel about the future of affirmative action. Yet for all the front-page attention, angry debate and exchanges before the justices, some of the more fundamental elements of the case have been little reported.

Race probably had nothing to do with the University of Texas’s decision to deny admission to Abigail Fisher.

In 2008, the year Fisher sent in her application, competition to get into the crown jewel of the Texas university system was stiff. Students entering through the university’s Top 10 program — a mechanism that granted automatic admission to any teen who graduated in the upper 10 percent of his or her high school class — claimed 92 percent of the spots.

Fisher said in news reports that she hoped for the day universities selected students “solely based on their merit and if they work hard for it.” But Fisher failed to graduate in the top 10 percent of her class, meaning she had to compete for the limited number of spaces up for grabs.



She and other applicants who did not make the cut were evaluated based on two scores. One allotted points for grades and test scores. The other, called a personal achievement index, awarded points for two required essays, leadership, activities, service and “special circumstances.” Those included socioeconomic status of the student or the student’s school, coming from a home with a single parent or one where English wasn’t spoken. And race.

Those two scores, combined, determine admission.

Even among those students, Fisher did not particularly stand out. Court records show her GPA (3.59) and SAT (1180 out of 1600) were good but not great for the highly selective state flagship university. The school’s rejection rate that year for the remaining 841 openings was higher than the turn-down rate for students trying to get into Harvard.

As a result, university officials claim in court filings that even if Fisher received points for her race and every other personal achievement factor, the letter she received in the mail still would have said no.

It’s true that the university, for whatever reason, offered provisional admission to some students with lower test scores and grades than Fisher. Just five of those students were black or Latino. Forty-two were white.

Neither Fisher nor Blum mentioned those 42 applicants in interviews. Nor did they acknowledge the 168 black and Latino students with grades as good as or better than Fisher’s who were also denied entry into the university that year. Also left unsaid is the fact that Fisher turned down a standard UT offer under which she could have gone to the university her sophomore year if she earned a 3.2 GPA at another Texas university school in her freshman year.

In an interview last month, Blum agreed Fisher’s credentials and circumstances make it difficult to argue — as he and his supporters have so ardently in public — that but for her race Fisher would have been a Longhorn.

“There are some Anglo students who had lower grades than Abby who were admitted also,” Blum told ProPublica. “Litigation like this is not a black and white paradigm.”

Blum started his one-man nonprofit, the Project on Fair Representation, in 2005. The organization is funded by deep-pocketed conservatives to, according to its website, influence “jurisprudence, public policy, and public attitudes regarding race and ethnicity” in voting, education, contracting and employment. To do so, Blum — who is not a lawyer — helps arrange pro bono representation to fight race-based policies that were meant to address inequalities.

According to a Reuters profile, Blum has brought at least a dozen lawsuits against such programs and laws — including four that made it to the Supreme Court. He has two on the current docket, Fisher and the Shelby County, Ala., case challenging a key provision of the Voting Rights Act.

In the Fisher case, while the young woman may have lent her name to the lawsuit, the case before the Court has very little to do with her. Her name appears just five times in the thousands of words that make up the body of the complaint. She has already gone on to graduate from Louisiana State University, her second choice, and is working in finance at a firm in Austin.



Asked by a news reporter what harm she had suffered, she cited only her inability to tap into UT’s alumni network and possibly missing out on a better first job. If she wins, Fisher seeks only the return of her application fee and housing deposit — a grand total of $100 in damages.

So while the Fisher case has been billed as a referendum on affirmative action, its backers have significantly grander ambitions: They seek to make the case a referendum on the 14th Amendment itself. At issue is whether the Constitution’s equal protection clause, drafted by Congress during Reconstruction to ensure the rights of black Americans, also prohibits the use of race to help them overcome the nation’s legacy of racism.

The Supreme Court has never ruled that the Constitution bars any and all laws and government programs that consider race. But Blum and his supporters, seeing an opening with the current Court, seek to overturn more than a century of precedent.

The true crux of the suit is not Fisher’s failed application, but that government officials violate the constitutional rights of white Americans when they consider race in a way that might help African-Americans and Latinos.

“An argument can be made that it is simply impossible to tease out down to the last student who would have been admitted, and who would have not been admitted, had they been a different skin color,” Blum said. “What we know is skin color is weighed and ethnicity is weighed by the University of Texas in their admissions process, and that alone is enough to strike down the plan.”

Blum and his supporters say the reasoning is simple. The Constitution is colorblind and the equal protection clause of the 14th Amendment prohibits the government from treating people differently because of race.

It’s an argument first successfully championed by the NAACP and other civil rights groups, most notably in the landmark Brown v. Board of Education case, in which the Supreme Court declared the notion of “separate but equal” to be a fallacy.

“In its history, colorblindness has this progressive, anti-racist push behind it,” said Ian Haney-Lopez, a constitutional scholar at the University of California, Berkeley School of Law.

But following the Brown decision, the very groups that had ardently — and violently — defended laws mandating separation by race used the notion of a colorblind Constitution to challenge court orders to integrate schools.

“They began to say, yes, the Constitution is colorblind, and so the state cannot distinguish between races when it tried to remedy segregation,” he said.


As a result of Southern resistance, it would take six years after Brown before 6-year old Ruby Bridges, wearing crisp white socks and black-bowed shoes, became the first black student to attend a white elementary school in the South. The image of the diminutive brown-skinned girl who needed U.S. marshals to protect her from an angry white mob inspired Norman Rockwell to preserve the moment in a painting that now hangs in the White House occupied by the first black president.

Initially, the Supreme Court unambiguously knocked those arguments down. In a 1971 ruling, it said that government could not mandate colorblindness when doing so would defeat the integration requirement of Brown v. Board of Education. A few years later, in the defining ruling on affirmative action, Grutter v. Bollinger (2003), Justice Harry Blackmun wrote, “In order to get beyond racism, we must first take race into account. There is no other way.”

But as the Supreme Court’s make-up has grown more conservative, it has taken up a steady stream of so-called reverse discrimination, in which white plaintiffs have argued that race-specific measures born of the civil rights movement discriminate against white Americans and violate the 14th Amendment.

Supreme Court decisions have eroded programs and laws that use race to remedy inequalities, but not eliminated them altogether. And in a 2003 opinion written by centrist Sandra Day O’Connor, the justices narrowly upheld affirmative action in college admissions when it is the only means to ensure diversity.

But the Court’s make-up changed in what scholars consider a significant way when Samuel Alito, considered the third most conservative Supreme Court justice since 1937, replaced O’Connor in 2006. Since then, several justices have made their constitutional disdain for race-conscious programs known. In a controversial 2007 decision, Chief Justice John Roberts sent a clear message when he used the equal protection argument at play in Brown v. Board of Education to strike down voluntary desegregation plans in schools.

Evoking a colorblind Constitution, Roberts said, “The way to stop discriminating on the basis of race, is to stop discriminating on the basis of race.”

And just last month during oral arguments over the constitutionality of a key aspect of the Voting Rights Act, Justice Antonin Scalia derisively called what’s considered the most successful civil rights law in history a “racial entitlement.”



Public opinion on race has changed over time as well. In the 1950s, surveys show, most white Americans believed that black Americans faced substantial discrimination but that they themselves experienced little. Today, despite gaping disparities between black and white Americans in income, education, health care, homeownership, employment and college admissions, a majority of white Americans now believe they are just as likely, or more likely, to face discrimination as black Americans.

Blum chose the University of Texas to mount what could be a decisive challenge to affirmative action in college admissions because it already had what was regarded as a “race-neutral” process — the Top 10 program. Since many Texas high schools remain segregated, taking the top 10% of students from black and Latino high schools ensured a substantial population of students of color at the UT.

As a consequence, Blum believed he could challenge whether the additional use of race to fill out the entering class passed constitutional muster.

To get standing in court, Blum needed a victim. That’s when he started looking for a version of the Brown family, someone who could represent the arguable hurt caused when public officials used race.

This approach, too, mirrors an NAACP tactic from half a century ago. Then, knowing the Supreme Court was unlikely to throw out segregation in one fell swoop, the civil rights group brought a narrower challenge to segregated school facilities first.

One of those cases, ironically, targeted the same university as Blum — the University of Texas at Austin. The university, which had been closed to black students since its founding, denied the law school application of Heman Marion Sweatt because the state constitution required that black and white students attend separate schools.

Because Texas had no black law school, the NAACP sued, arguing that the state violated the constitutional mandate to provide equal facilities for black and white students. The Supreme Court ruled that the hastily put together black law school created to avoid admitting Sweatt could not possibly be equal. It ordered Texas to admit Sweatt as its first black student in 1950.

That suit launched the stone that would shatter separate but equal just four years later when the Court struck down segregation in schools in Brown.

Blum and his supporters hope to use the Fisher case, and the 14th Amendment challenge to the Voting Rights Act that Blum is also behind, in the same way.

According to Blum, the Constitution sees affirmative action policies — in college, in contracting, in employment — and Jim Crow laws as twin evils.

“I don’t see the distinction,” he said.

But several constitutional scholars interviewed for this piece dispute this notion. Neil Siegl of Duke University called this interpretation of the 14th Amendment “perverse.” Georgetown Law Professor Girardeau A. Spann called it “discriminatory.”

While the 14th Amendment doesn’t mention race, the drafters went on to pass race-specific legislation aimed at helping former slaves and other black Americans overcome more than a century of racial oppression.

Erwin Cherminsky, founding Dean of the University of California, Irvine School of Law, said that the concept of colorblindness holds great rhetorical appeal but that “there is no basis for concluding that the 14th Amendment equal protection clause requires colorblindness.” In drafting the 14th Amendment, he said, Congress recognized “an enormous difference between a white majority disadvantaging minorities and a white majority acting to remedy past discrimination.”

Conservatives challenging these types of programs purport to champion the legacy of the civil rights movement, Haney-Lopez said, but the historical roots of their efforts are much more cynical.

“I think that is incredibly important that people realize that today’s proponents of colorblindness pretend that they are the heirs to Thurgood Marshall and John Marshall Harlan,” he said. “But that is a lie. They are the heirs of Southern resistance to integration. And the colorblindness arguments that they use come directly from the Southern efforts to defeat Brown v. Board of Education.”

Ilya Shapiro, a senior constitutional studies fellow at the Cato Institute, which filed an amicus brief supporting Fisher, thinks otherwise.

“I am not going to speak to anyone else’s motives. It is unfair to paint people with the Jim Crow brush because they have those kinds of arguments,” he said. “I don’t like people being judged based on the color of their skin.” If a program “treats people different because one has a different skin color, I find that offensive and I think the Constitution does as well.”

But when asked why the drafters created programs targeted to black Americans if they did not intend the Constitution to allow the government to use race to help minority groups, Shapiro said, “It was a curious period.”

At the same time Congress drafted the equal protection clause, he said, it also “voted for segregated schools in the District of Columbia.”

That example is the very same one that segregationists Strom Thurmond and Richard Brevard Russell used when they drafted the 1956 Southern Manifesto urging officials to resist the Supreme Court’s use of the equal protection clause to overturn school segregation.

The impact of a ruling that bans all racial considerations by universities, employers and governments “could have devastating impact on the ability to overcome past inequalities,” Siegel said.

Few experts think Blum and his supporters are apt to win that big a victory in the Fisher case. And so he will likely be on the hunt again for another case, and another perfect plaintiff. But here is why he should not win and why affirmative action should remain a factor in college and graduate school admissions for now.

Why Affirmative Action Should Not Be Outlawed Right Now

I will not contend here that affirmative action is a solution. It is a band-aid on a gaping wound. It is a piecemeal measure intended as a boost for marginalized groups that is a necessary evil until we find and solve the underlying reasons for the disparity between under-represented and over-represented groups on standardized tests, which are all-important in higher education admissions.

The Black-White Score Gap

African-Americans currently score lower than European Americans on vocabulary, reading, and mathematics tests, as well as on tests that claim to measure scholastic aptitude and intelligence. This gap appears before children enter kindergarten, and it persists into adulthood. It has narrowed since 1970, but the typical American black still scores below 75 percent of American whites on most standardized tests.
The black-white test score gap does not appear to be an inevitable fact of nature. It is true that the gap shrinks only a little when black and white children attend the same schools. It is also true that the gap shrinks only a little when black and white families have the same amount of schooling, the same income, and the same wealth.
When black or mixed-race children are raised in white rather than black homes, their preadolescent test scores rise dramatically. Black adoptees’ scores seem to fall in adolescence, but this is what we would expect if, as seems likely, their social and cultural environment comes to resemble that of other black adolescents and becomes less like that of the average white adolescents.
Reducing the black-white test score gap would reduce racial disparities in educational attainment as well as in earnings. The nationwide High School and Beyond survey tested twelfth-graders in 1982 and followed them up in 1992, when they were in their late twenties. At the time of the followup only 13.3 percent of the blacks had earned a B.A., compared with 30 percent of the non-Hispanic whites. Many observers blame this disparity on black parents’ inability to pay college bills, black students’ lack of motivation, or the hostility that black students encounter on predominantly white college campuses. All these factors probably play some role.
Nonetheless, the data shows that when we compare blacks and whites with the same twelfth grade test scores, blacks are more likely than whites to complete college. Once we equalize test scores, High School and Beyond blacks’ 16.7 point disadvantage in college graduation rates turns into a 5.9 point advantage.
Eliminating racial differences in test performance would also allow colleges, professional schools, and employers to phase out the racial preferences that have caused so much political trouble over the past generation. If selective colleges based their admission decisions solely on applicants’ predicted college grades, their undergraduate enrollment would currently be 96 or 97 percent white and Asian. To avoid this, almost all selective colleges and professional schools admit African Americans and Hispanics whom they would not admit if they were white. Racial preferences of this kind are politically unpopular. If selective colleges could achieve racial diversity without making race an explicit factor in their admission decisions, blacks would do better in college and whites would nurse fewer political grudges.
The interesting part of this is that traditionally liberal explanations for the gap (poorer schools, SES, etc) actually fail to account for the disparity in every single data set. As a result, the number of liberals who claim to know or even study the reason for said gap has steadily declined since the 60’s, as black affluence has steadily gone up. So who comes in to study and comment on the reason for the disparity? Conservatives, whose explanations all fall into three camps: the culture of poverty, the scarcity of two-parent black families, and genes. Which is exactly what we were just talking about, SBL. The contingent of think tanks and educational groups, all right-leaning, who have studied genetic disparities between blacks and whites (to no avail, obviously) has gone way up since the 70’s.

A Breakdown of This Gap –

So blacks score significantly lower on standardized tests than whites. Period. To illustrate that this is true we’ll take a test with much fewer takers than the SAT and breakdown the data for African-Americans/Blacks. Let’s take a nice long look at the LSAT:

This will be fairly long, but my hope is that this analysis will be able to help some hopefuls get a better idea of where they stand with the schools they’d like to attend than LSN (which, let’s be honest, is useful though limited by sample sizes) can give us. I’m hoping that a discussion within this thread will aid in making this even more helpful by plugging holes in my analysis and making more suggestions for further clarity. I’ll present all of the underlying components of my thesis in order.

First, let’s discuss the key factor that this theory relies on, and that is the normally distributed sample. It seems to be generally agreed that LSAT scores follow a normal distribution. Here, I have narrowed that pool of scores to focus specifically on black test takers, and applied the principles of the normal distribution to that group alone.

The standard deviation is the second key here, as it will allow us to determine how many people fall into individual sections within that normally distributed sample. Here’s a graph showing some of the percentages:



Now for some number crunching with the standard deviations. For this, I went to LSAC and downloaded their LSAT performance summary, which contains yearly test-taker performance data separated by gender, ethnicity and region. You can download the full report at the bottom of this page.

I’ll be using the data for African-Americans from the 2009-10 testing years. The key numbers are as follows:
Total number of test-takers: 14,585
Mean score: 142.04
Standard Deviation: 8.74
1SD Above Mean: 150.78 (151)
2 SD Above Mean: 159.52 (160)
2.5SD Above Mean: 163.89(164)
3 SD Above Mean: 168.26 (168)
Now with this data in hand, we can use a standard deviation curve to get an idea of approximately how many African-American/Black test takers (what percentage, roughly) fall at or above each of the standard deviation milestones I listed above.

Number of Black Test Takers At or Above 2SD (159.5): 335.455 (335-336)
At or Above 2.5SD (164): 87.51 (87-88)
At or above 3SD (168): 14.585 (14-15)

Alright, so onto some conclusions:

1) A 159 should, in theory, put an African American approximately near the top 360 or so among black test takers (about 2 full Standard Deviations above the mean).

2) A 164 will puts an African American 2.5 SDs above the mean, a level that only approximately 90 blacks should reach annually (88 or so did this in 2009-10), assuming a normally distributed sample.

Going further, I do not have exact approximations for where scores in between 2 and 2.5SDs (161-163) would place a black applicant, but it could probably be safely inferred that there aren’t many more than 130-160 AA’s at or above 162/163.

3) A 168 will put the black applicant 3SDs above the mean, a level that less than 20 AA test takers (around 1-1000, to be more precise-only 15 or so likely pulled this off in 2009-10) will reach annually in a normally distributed sample.

All things equal, this means that a black applicant with a 168 is theoretically similar to a white applicant with a 180 (perfect LSAT score).

So what does all of this mean? In any given law school application year, of the tens of thousands of black applicants, only around 50-75 total will have a 3.5+ GPA and a 165+ LSAT. Compare this to the 500-700 Caucasian applicants in a given year who will have 3.7+ GPA and 170+ LSAT.

Keep this disparity in mind.

What That Disparity Tells Us –

1) The disparity gives us one main argument that all anti-AA arguments must answer: There is a big score gap between URMs (under-represented minorities) and non-URMs on standardized tests (such as the LSAT). So which is it: A) URMs are just dumber than non-URMs or B) there is another reason. So this tells us that there is a deeper problem to solve before we abolish affirmative action. As of now, as seen above, black men score 10-12 points lower than white men on the LSAT and hundreds of points lower on the SAT. This is not because they’re lazy (if I asked a 20 year old kid going to their local public university what the URM bump in law school admissions was, they would look at me like I was speaking Turkish, so claiming the bump is an enabler is silly and naive). It’s also not because they’re simply not as smart as ORMs (over-represented majorities). It is something else. What? We don’t know. We’re still trying to figure it out.

But if it any form of shock to you that systems created by groups who wield organizational control are created to benefit it’s creators, then I have a lot of land in Southeastern Indonesia to sell you.

2) It tells us that the few black folks at the very top law schools right now, whether due to affirmative action or not, are spokespeople for their race. That is a problem.

This practice of singling successful blacks out is precisely the reason that “critical mass” at the highest echelons has not been achieved, despite the jibing from Roberts, Rein, Alito, and others that there needs to be some numerical iteration. Critical mass happens when the black dude at Harvard Law Schools, isn’t the black dude at Harvard Law School. He’s another dude at Harvard Law School.

And I know the counter-argument: “yeah well the only way to get on equal footing is to not take race into account, by segregating admissions pools, you segregate the quality and functional segregation continues.” Wrong. As of right now, if you do not take race into account, HLS will be chock full of affluent ORMs and then the dog-whistles get hooked up to an amplifier and we have to start from scratch. Whereas now, partially due to affirmative action (yeah, I said it), we have a Latina Supreme Court Justice and a mixed race African American President, amongst other “examples.” These example help URMs work harder. URM applications have increased in the last 5 years, URM average LSAT scores have increase since 2004. Interesting that 2004 is when Grutter began being implemented.

So… since Grutter provided a little boost up for historically marginalized and underrepresented minorities, their average test scores and willingness to apply and aspire to be attorneys has increased. Causation? Maybe. Correlation? I think so.

The problem is that anti-affirmative action proponents don’t see a need to give these groups a leg up. They’re too focused on the Carlton Banks archetype to see the very real reality of the actual day in the life of the average urban minority. How different that life is from almost any white kid. The gap in treatment and opportunity is closing, but it’s not closed.



So Why Is Affirmative Action Still Around, Exactly?

AA is still around because ethnic and experiential diversity, as opposed to homogenization, is a good educational interest to strive for.

As it stands, and I’ll continue with the law school admissions data set because they’re smaller and easier numbers to work with, URM candidates score, on average, significantly lower than ORM candidates on the LSAT, as seen. The reasons for this are varied and the score gap is slowly but steadily declining. However, as it stands, most URM applicants would indeed be shut out of the top 20 or so schools if admissions were race blind – and the ones who weren’t would be pretty few, far between, and isolated. So AA doesn’t exist as a form of guilt or as a demographic quota standard measure, it’s to make sure all schools have a diverse student body.

And let’s be honest, for all the anti-AA “let’s all be equal” arguments you will here, the ethnic makeup of the top law schools in the country would be awkwardly tragic if admissions were race blind.

We know URMs aren’t just dumber. If we think they’re lazy because they ALL somehow know about the URM bump, we’re kidding ourselves (this is a silly argument by the way, I’m invested in my education and not an idiot and I had zero clue about it until I began studying affirmative action due to this case). What matters is making sure that score gap is closed so that diversity can happen organically, until then affirmative action should probably stick around.



Counter Arguments to Affirmative Action

1) Well, Asians do well and they’re minorities! The issue is culture!

The reason some cultures and ethnicities do better on the LSAT, for example, isn’t magic.
It’s not magic that over 90% of Fortune 500 CEO’s are white men.
It’s not magic that over 60% of drug incarcerations are a result of petty marijuana crimes in which a black man under 35 was prosecuted.
It’s not magic that Asian, Middle Eastern, and European immigrants do well here.
And it’s not magic that African Americans and Hispanics seemingly don’t have the “desire and motivation to do well.”

If anyone really sat down and analyzed the structural, functional, cyclical, and systemic barriers that have been implemented so that black people cannot be on equal footing, in terms of opportunity or advancement, they would understand why this band aid on a tumor that we know as affirmative action is necessary in the interim.

2) How about rich black guys getting a boost while poor white guys get left out. That’s unfair!

Mass social policy is created in order to prescribe uniform solutions to nuanced problems that will always have outliers. So go get mad that there are artistic savants who are failing out of California grade schools because of restrictive mathematics standards. Go fight that battle then come back to AA, if it’s really unfairness that bothers you and not blacks getting a leg up.

Name a social policy designed to address an ill in any field at all – employment, education, social justice, whatever – and I’ll show you the outliers and exceptions, and you can then whine about why that policy is unfair. That’s how it works. Chances are, the policy is good, in the aggregate.

Focusing on the affluent black guy is dumb ass red herring that ignores the larger problem. This is a perfect example of people literally getting up in arms about a grand total of what, 5 seats at the top law schools being taken by a rich black guy that could’ve been taken by a poor white guy? Seriously, it can’t be more than 10, right? People need to relax and stop being so damn myopic – the issue is bigger than a few people. It’s about social policy.

3) Colleges should use Socio-Economic Status (SES) as a boosting factor instead of race, it’ll solve more of the root issue!

SES has two major flaws: a) it doesn’t address the disparity in LSAT scores between URMs and non-URMs (and thus the determining factor as to why URM numbers would be greatly diminished at the top schools without AA in the interim) and b) LOL if anyone thinks admissions offices have the staff, patience, or time to look through thousands of tax returns and economic indicators on every app to see if a kid is actually poor.

The history of this country, and school admissions, isn’t that poor people score lower on standardized tests designed by old white dudes, it’s the under represented minorities do. Either they are dumber than white folks or it’s something else. We have to figure out what that is but in the meantime, giving URMs a leg up in a system designed by ORMs is a necessary unfairness that you’re just gonna have to deal with.

4) The only other arguments I’ve heard involve fairness and something that resembles: “Institutional racism doesn’t exist, white privilege doesn’t exist, everyone is totes equal, nothing to see here, na na na boo boo, stick your head in doo doo.”

And for that, I refer to you every single meaningful statistic regarding the functional segregation of races that’s plagued this country. I refer you to check out the history of Compton from sprawling suburb to industrialized ghetto. Check out environmental racism. Check out the modern state of white privilege (It exists. It absolutely, 100%, unequivocally exists. If you don’t think it does, you are being tragically dense). Look over all of the dataand then if you have the gall to tell me, or anyone, that some minorities do not deserve a leg up until we understand the disparity of the scores, then we’ll agree to disagree and go about our separate ways. I am of the mind that the data supporting my position is completely overwhelming to any objective viewer willing to see all of the evidence.



The Sonic Eclectic Prediction

First off, if you have 80 free minutes, check out the oral arguments for this case. They are riveting.

A few laymen thoughts on the oral arguments:

– Justice Breyer killed it.
– I actually thought Justice Kennedy’s questions regarding AA were the most prudent of the 8 Justices.
– Scalia is borderline retarded, dude doesn’t even try to be objective anymore.
– Rein (Fisher’s attorney) never asked or even implied a desire to overturn Grutter. He’s asking that the misreading of Grutter that’s allowed the green lighting of race as a determinable impact, be corralled. Not a bad point at all actually. He did a very good job.
– All but one of Kennedy’s questions were exclusively tied to Texas’ 10% plan. He seems to have little intent on reading this case in the broad way Roberts, Scalia, and Alito were pushing for.
– Garre (UT’s attorney) completely shit the bed, Roberts and Alito ate him alive.
– Not sure why everyone was so tough on Verrilli (Attorney General of the United States), I thought he was fine. I think it’s the same issue he had during the ACA case: he’s not a very impressive or persuasive speaker but he knows how to win the legal argument. He seemed to do that here. Not sure if he’ll win but his argument, in light of Garre’s terrible showing, may very well prove to be the determining factor in Kennedy’s restraint in totally gutting Grutter.

Prediction –

I predict 5-3 (Kagan has recused herself) in favor of Fisher with a limiting of Grutter that requires Universities to either move towards more race-neutral holistic admissions plans or having each University define what exactly that institution’s critical mass is (via some kind of detailed index) and then craft their admissions policy to move towards that. Both can be achieved through asking more questions having to do with experience and SES, as well as other factors.

$20 says defining critical mass/end point is the central reason Kennedy sides with Scalia, et al but crafts another independent argument of his own, as in Grutter. It’ll be interesting to read how Kennedy reconciles his view that diversity in higher education is a vested state interest with his dislike for the lack of “end point.” Having said all that, I think 4-4 with a big fact clarification of terms and arguments in Grutter is also very possible.

Total affirmation or gutting of Grutter seem unlikely.

Also, in light of some recent events, it seems like SCOTUS has tipped it’s hand a little, as they just took on a case from Michigan for next session that directly challenges Grutter, that case is Schuette v. Coalition to Defend Affirmative Action.

Ultimately, I stand by my prediction – they’ll probably vote against University of Texas in a narrow ruling in the Fisher case then attempt to abolish affirmative action altogether next Fall with Schuette.

Majority Writing Opinion Prediction –

Justice Anthony M. Kennedy, who has voted against racial preferences in previous rulings, was widely seen as having the pivotal vote in the new case both before and after arguments. It is all but certain that he is writing the majority opinion in the case; he is the only justice with no majority opinion so far from the 10 cases argued in October.

Effects –

The chances of this decision having a real impact on admissions isn’t much. No one except the most hopeful conservatives expect Kennedy, who is almost certainly writing this opinion, to ban race as a factor in admissions completely. Literally nothing he has said or done points to him wanting to do this. His language inGrutter and Parents Involved in Community Schools v. Seattle School District No. 1 (2007) – another affirmative action case – show that he sees the need for using race in admissions policies but has extreme reservations about how they are used in doing so. He is ultimately not a fan of affirmative action but sees it’s modern utility and doubtfully wants to become the Justice responsible for delivering it’s death knell.

Schuette, however, could have a very broad and immediate impact next June.

Outstanding Issues –

Somewhere in the opinions and dissents address the issue of standing needs to be addressed, since Aibgail Fisher did not have the numbers to get into UT, thus couldn’t really suffer an injury. This issues of “standing” has been a huge issue with legal scholars since SCOTUS granted Fisher’s writ of certiorari.

The other issue here is that the case could be thrown out as moot given that she graduated from a 4 year institution already, but this is extremely doubtful.

I sincerely hope everyone coming away from this article is well-versed on the history, effects, pros, and cons of affirmative action’s past, present, and future. It is one of the most culturally significant and divisive institutions we have. I can only hope we work diligently to solve the underlying issues that make it’s presence necessary so that one day soon it won’t have to be.

EDIT: The Supreme Court has rendered a decision on Fisher v. University of Texas and holy crap was everyone wrong.

Here is the decision, in plain English:

Today a broad majority of the Court reinforced that affirmative action must be strictly reviewed, but it did not outlaw those programs.  In an opinion that required only thirteen pages, the Court explained that a university’s use of race must meet a test known as “strict scrutiny.”  Under this test, a university’s use of affirmative action will be constitutional only if it is “narrowly tailored.”  The Court in Fisher took pains to make clear exactly what this means:  courts can no longer simply rubber-stamp a university’s determination that it needs to use affirmative action to have a diverse student body.  Instead, courts themselves will need to confirm that the use of race is “necessary” – that is, that there is no other realistic alternative that does not use race that would also create a diverse student body.  Because the lower court had not done so, the Court sent the case back for it to determine whether the university could make this showing.

Justice Antonin Scalia joined the Court’s opinion, but he also wrote a separate, one-paragraph concurring opinion in which he made clear that, if Fisher and her lawyers had asked the Court to do so, he would have voted to overrule the 2003 decision in Grutter and eliminate the use of affirmative action altogether.  Justice Clarence Thomas – who in his autobiography blamed affirmative action for his problems finding a job after he graduated from Yale Law School in the 1970s – shared that view, but he opted to discuss his reasoning at length, in a twenty-page concurring opinion in which he suggested (among other things) that “the arguments advanced by the University in defense of discrimination are the same as those advanced by the segregationists.”

Justice Ruth Bader Ginsburg was the lone dissenter, but she still managed to produce a few zingers of her own in her sparse four-page opinion.  Most notably, she pooh-poohed the idea that the two alternatives to affirmative action suggested by Fisher and her lawyers – the school’s Top Ten Percent Plan, which offers automatic admission to any Texas high school student in the top ten percent of her class, and the review of applications without regard to race – are in fact “race-blind.”  Because race was actually at the heart of the Top Ten Percent Plan, she suggests, and because universities will still consider race even if they need to do so covertly, “only an ostrich could regard the supposedly race neutral alternatives as race unconscious.”

How will the university’s policy fare in the lower courts?  Given the Top Ten Percent Plan’s success in achieving a diverse student body, the school could face an uphill battle in convincing the lower court that itneeds to be able to consider race to fill the remaining slots.   And it may soon have lots of company in court, if today’s ruling leads to new lawsuits by spurned applicants at other schools.

Given how long it took the Court to decide this case (nearly nine months), the seven-to-one vote came as somewhat of a surprise.  Although it may be many years before we know for sure, it seems very possible that the end result was a compromise brokered to break a stalemate:  affirmative action survives at least in theory (which would gain the support of Justices Breyer and Sotomayor), but will be far more difficult to implement in practice (which would gain the support of the Court’s more conservative Justices).   But for now, and probably much to their relief, affirmative action is off the Justices’ plate – at least until fall, when they will hear oral arguments in a case challenging an amendment to the Michigan constitution that prohibits the use of affirmative action by public universities.

However, despite all of the technical jargon, I do think a bit more than punting (effectually) was done today. They’re almost certainly waiting for Schuette v. Coalition or the re-discovery of Fisher to make a statement on affirmative action. Fisher lacked in standing, had weird mootness issues, and the task of resolving those outstanding issues and formulating a coherent plan/idea on critical mass and diversity was a bit much, I guess.

What they really did is subtly change the framework within which the legal question can be seen, in order to set the stage for a broader decision. Kennedy instructed the 5th in his decision that changing prior harms and, more importantly, diversity, are not educational interests. Without recourse to diversity, that kind of cuts the legs out from under Grutter/Gratz. So the 5th is being tasked, essentially, with what SCOTUS should have done.

And if the 5th still sees the legal question the same way, even with their hands tied (unable to cite the most compelling interest in Grutter), SCOTUS will still be able to cite Kennedy’s majority opinion as precedent in formulating the framework for a decision that cuts deeply into universities’ ability to implement affirmative action.