Supreme Court and Affirmative Action: Race Should Not Be the Deciding Factor
When high school senior Abigail Fisher submitted her application in 2008 to the University of Texas at Austin, she had high hopes of continuing her family’s tradition of attending the institution. Like many college hopefuls, she was disappointed when she wasn’t accepted. Rejection is never easy and many take it as a life lesson and move on to one of their other choices. Abigail, however, decided to challenge the university’s decision.
You see, Abigail was convinced the only reason she didn’t get in was because she was white.
On Monday, June 24, 2013, the Supreme Court issued its decision in Fisher v University of Texas at Austin. Fisher’s argument was that the university’s policy violated the parameters of the 2003 case, Grutter v Bollinger, in which the court ruled race-conscious admissions were permissible if used as just one part in furthering a compelling interest in diversity, believed by many to be crucial to a good education. According to Fisher, the University of Texas at Austin already had a diverse population and accepting a minority applicant over her in pursuit of diversity was a violation of the 2003 decision.
The problem is that Abigail wasn’t denied admission because of her race.
The truth about affirmative action policies
On March 6, 1961, President John F. Kennedy signed Executive Order 10925, which confirmed the government’s commitment to equal opportunity for all qualified citizens and to encourage 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.”
And with that, the phrase “affirmative action” was born.
President Lyndon Johnson issued additional executive orders in 1965 and 1967, which further clarified the government’s stance on taking affirmative action, to include the prohibition of discrimination due to the indicated attributes, as well as adding gender to the list. He also required government and private contractors to have a written policy outlining their efforts ensuring that their hiring and employment practices were equal for all qualified applicants.
In other words, he wanted them to commit to taking action, in the affirmative, to give everyone an equal opportunity.
It was also understood that a key ingredient to being a qualified applicant would also require a quality education. Soon universities were making their own efforts to increase opportunities for everyone.
It was the 1960s and it was no secret that minorities (which, at that time, seemed to only include black people for the sake of historical discussion) were not the face of the power elite. In his 1965 commencement address at Howard University, President Johnson acknowledged that “in far too many ways American Negroes have been another nation: deprived of freedom, crippled by hatred, the doors of opportunity closed to hope.” Affirmative action policies were a well-meaning effort to ensure that qualified minorities would be considered for their merits and not have doors closed to them because of their race.
Whenever hot button issues like race are involved, the truth gets lost in the rhetoric. For the next several decades, “affirmative action” would be code for saying minorities and women were not qualified for positions, with accusations of tokenism and quotas being hurled at those making a conscious effort to increase diversity in the workplace and institutions of learning. They would forget, or more than likely, not know, that race was never meant to be a deciding factor.
The key point for all of these individuals was they were to be qualified. Consideration of their race was only one factor, not the deciding factor.
Abigail Fisher was not qualified.
When Abigail applied in 2008, she faced stiff competition. The Texas university system had a program called The Top 10, in which any student that graduated within the top ten percent of their class was guaranteed admission to the University of Texas. 92% of the available spots were filled through the Top 10 program.
Not being in the top ten percent of her class, Abigail had to compete for the remaining spots based on her grades and personal achievements. The personal achievement index awarded points for essays, extracurricular activities and special circumstances, such as being in a single parent home, personal hardship, or race. Fisher’s grades and personal achievement index still did not qualify her for admission. In fact, the university argued, even if her race had awarded her special consideration, she still would not have been admitted.
The university acknowledged that some with lower grades and personal achievement indexes than Abigail were admitted, for whatever reason. 47 students received offers of admission. 42 of them were white.
The Supreme Court did not issue an opinion on the merits of Fisher’s argument and instead sent the case back to the lower court, instructing it to ensure that the university met the “strict scrutiny” test. This means that the court can’t just agree when the university says race-conscious admissions were done for the point of diversity. The court must make sure that the university exhausted all other efforts to create a diverse population before it considered race.
In other words, the lower court must make sure the university took actions, in the affirmative, to give everyone an equal opportunity.