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.

Quality matters

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.


Jim Ven
Jim Ven1 years ago

thanks for the article.

Lika S.
Lika P4 years ago

As a woman who is half Asian, it's kind of crappy that I may or may not be considered because I'm a woman, or that I may be denied, because I'm part of the "model minority" that "doesn't really need help". I'm either qualified or I'm not. Don't hire a less qualified white guy because he's a white guy, and don't hire me to meet a quota. Hire because we are qualified.

Stanley R.
Stanley R4 years ago

UT sucks anyway

Stacey Toda
Stacey Toda4 years ago

Race should never be the deciding factor in anything.

Eternal Gardener
Eternal G4 years ago

Objective tests... aren't they the answer?

Norma V.
Norma Villarreal4 years ago

Sometimes we bend over backwards trying to prove we treat one another equally and the result is discrimination.

Virginia Belder
Virginia Belder4 years ago


Julie D.
Julie D4 years ago

No one should have to declare their race when applying to colleges. They should be accepted only on the merits of their grade point averages. I also do not think race should be asked to be declared on entrance forms when applying for children to go to K-12 schools either, but they are routinely asked to do this. Eliminating the need to declare ones race on any application form would be affirmative action of the best kind.

Vicky P.
Vicky P4 years ago

shouldn't be able to discriminate against whites or any other colour. People should get accepted to programs because of their marks, etc, not because of their skin colour.

Carl O.
Carl O4 years ago

There is no denying that Affirmative Action was an imperfect solution from the start to the problem of disparity in quality education and opportunities that existed between affluent and poor communities that it was implemented to address. Denying someone with better qualifications a chance in favor of someone who may have been less qualified but economically challenged or of another race hurt those who were denied acceptance but it might have been a necessary evil to address the inequality inherent in our society even after Brown vs. The Board of Education.

However having Clarence Thomas compare Affirmative Action to slavery and segregation is inconceivable to me. I was unaware that there was so much cotton that needed to be picked at Yale University. Thomas benefited from Affirmative Action. In 1983 speaking before an Equal Employment Opportunity Commission, Clarence stated that it was "of paramount importance... God only knows where I would be today... These laws and their proper application are all that stand between the first 17 years of my life and the second 17 years.

Today Thomas feels that he was humiliated and stigmatized by Affirmative Action because people wondered if his achievements were because of his efforts or his race. After his comment that Affirmative Action was comparable to slave holders and segregationists the question has been answered. Thomas is an intellectual light weight a mental midget and his accomplishments are likely the result of hi