If you believe that attending a diverse campus has enriched your college experience, sign this petition. It’s not just a petition - it’s an amicus curiae brief that will serve as some of the evidence in the October SCOTUS case Fisher v. University of Texas - Austin.
Here is the deal:
Abigail Fisher, a white high-school student in Sugar Land, Texas, was rejected for admission to the University of Texas-Austin. The state requires all students in the top ten per cent of their high-school classes to be admitted to state universities, but students who fall just short of that threshold, like Fisher, are admitted according to a formula; race is one factor in the equation. Fisher’s lawsuit is based on a claim that any consideration of race by a university in admissions violates the Equal Protection Clause of the Fourteenth Amendment.
Lower courts upheld the university’s policy. It is possible that this case could be decided in Fisher’s favor with a narrow ruling, but many people suspect that if decided in her favor, it will be decided with a broad ruling that affirmative action is unconstitutional.
Interested/horrified/appalled and want to learn more? GOOD NEWS! I’ve been obsessively researching since I found out about the case. Here is a compilation of 14 sources, with selected excerpts. I tried to keep the sources neutral by including only the first couple to come up in a google search of ‘fisher vs. university of texas,’ the first page of links to come up in a google news search of the same term, and links cited within those articles. The excerpts are, of course, picked by me, and show my personal bias.
1. This week’s grants: In plain English, Amy Howe, SCOTUSblog
This article has the best summary of the case.
…The lower federal courts ruled against Fisher, who then shifted her efforts to the Supreme Court. In her petition seeking the Court’s review, Fisher suggests that she could win in two different ways. First, she argues that the university’s policies go farther than the Court’s decision inGrutterpermits: although the Court inGrutterrecognized that states have a strong interest in having admissions policies that promote diversity, so that students can receive the educational benefits created by diversity, in this case the university’s use of the Top Ten Percent Plan had already made it one of the country’s most diverse public universities. The university’s efforts to further increase diversity – by considering race as a factor to fill the remaining slots – so that the student body more closely matched the state’s overall population are, Fisher contends, really just the kind of racial balancing that the Court inGrutterindicated would be unconstitutional.
Fisher’s second line of attack comes at the very end of her petition. It is concise, but potentially far-reaching. She suggests that even if the Court concludes that the university’s admission policy is consistent withGrutter, it should overrule that decision.
One other thing is noteworthy about the Court’s decision to review the case. The state had tried hard to convince the Court that it should deny review because Fisher (who is the only plaintiff in the case) is about to graduate from another university. On the state’s view, the case was about to become “moot” – that is, it wouldn’t matter anymore because Fisher couldn’t apply again to the university for admission as a freshman or transfer. But at least at this stage of the game, the Court does not appear to regard this as a problem.
2. Citizen Radio interview with Demos’ Heather McGhee. This is where I first learned about the case. They start discussing about 40 minutes in.
3. The Other Big Supreme Court Case, Jeffrey Toobin, The New Yorker
Abigail Fisher is now a senior at Louisiana State University. The Texas case only concerns admissions practices at public universities, but based on past practices, the courts will likely apply the resulting ruling at private schools as well. The case will also not deal directly with affirmative action in the workplace, but, again, the same standards will likely be applied in that context. The great national experiment with affirmative action began in the Johnson Administration, thrived in the Nixon years, and has survived, embattled but enduring, ever since. We may now be in its final chapter.
In a way, it would not be surprising if the Court sent affirmative action to its doom. No figure in public life, including President Obama, has made a full-throated defense of the practice in years. On an aggressively conservative Court like the current one, that relative silence could well be seen as an invitation to dismantle the practice. In today’s political environment, a decision in favor of Abigail Fisher would generate as much praise as criticism. For the Roberts Court, that makes for a relatively risk-free license to follow its inclinations. Thanks to O’Connor’s opinion, it’s been clear for some time that the days of affirmative action were numbered, but it’s clearer than ever that that number may be dwindling quickly indeed.
4. Justices Take Up Race as a Factor in College Entry, Adam Liptak, The New York Times
The Grutter decision allowed but did not require states to take account of race in admissions. Several states, including California and Michigan, forbid the practice, and public universities in those states have seen a drop in minority admissions. In other states and at private institutions, officials generally look to race and ethnicity as one factor among many, leading to the admission of significantly more black and Hispanic students than basing the decisions strictly on test scores and grades would.
A Supreme Court decision forbidding the use of race in admission at public universities would almost certainly mean that it would be barred at most private ones as well under Title VI of the Civil Rights Act of 1964, which forbids racial discrimination in programs that receive federal money. In her majority opinion in Grutter, Justice O’Connor said the day would come when “the use of racial preferences will no longer be necessary” in admission decisions to foster educational diversity. She said she expected that day to arrive in 25 years, or in 2028. Tuesday’s decision to revisit the issue suggests the deadline may arrive just a decade after Grutter.
In 2003, in a case called Grutter v. Bollinger, the Supreme Court upheld the race-conscious admissions policy at the University of Michigan’s law school, reasoning that a diverse student body improves the education of all students. As the majority explained, “classroom discussion is livelier, more spirited, and simply more enlightening and interesting when students have the greatest possible variety of backgrounds.” A diverse student body also prepares students for their professional careers, as “the skills needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints.”
If the Supreme Court strikes down the University of Texas’s policy, it won’t help Abigail Fisher. She’s set to graduate from Louisiana State University this spring. But it will hurt racial minorities in Texas. Since UT’s adoption of its Grutter-inspired admissions policy, the number of African-Americans matriculating has nearly doubled. The number of Latino graduates has increased by almost 50 percent. Today, the University of Texas is ranked sixth nationwide in undergraduate degrees awarded to minorities.
6. Fisher v. University of Texas at Austin challenges affirmative action in higher education, AP, The Daily Texan
The challenge to the University of Texas program comes from Abigail Fisher, who filed a lawsuit with another woman when they were denied admission there. They contended the university’s race-conscious policy violated their civil and constitutional rights. By then, the two had enrolled elsewhere.
The other woman has since dropped out of the case and the state has said that Fisher is a senior at Louisiana State University whose impending graduation should bring an end to the lawsuit.
7. SCOTUS and Abigail Fisher: The Girl Who May Kill Affirmative Action, Dante Perez, Politic365
The Supreme Court will now be deciding over Fisher v. University of Texas. Which, began in 2008, when Abigail Noel Fisher, a white applicant, was denied admission to the undergraduate program at the University of Texas at Austin. Even though Fisher’s record in high school was not good enough to guarantee her admission, she believed she was turned away solely because of her race. In an effort to insure a diverse class of entering students, the University of Texas engaged in what Fisher called “blatant racial balancing.”
For Fisher, neither redress nor diversity are compelling reasons to support Affirmative Action policies. Government should be blind to race.
To be clear, even supporters of Affirmative Action agree that government should be blind to race. That is why even as the Supreme Court upheld the use of race as a partial selection criteria for colleges and universities, such measures continued to be conceived as temporary.
…However, for some, “[a]ny form of discrimination, whether it’s for or against, is wrong.” This idea was epitomized by Chief Justice Roberts: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
While this argument is terribly pithy and exudes mathematical self-evidence, it is fatally flawed by the assumption that the status quo is neutral. That is, that society will converge into just practices if left to its own devices. Even if you believe progress is inevitable, such a convergence would take many many generations.
As historian Roger Wilkins pointed out, “blacks have a 375-year history on this continent: 245 involving slavery, 100 involving legalized discrimination, and only 30 involving anything else.” Society has proved itself pretty inept at organically producing justice, if you ask me.
Right now, in 2012, there exists a gap in graduation rates between white students and students of color of about twenty percentage points. Similar gaps exist in salaries, promotions, etc. I’m going to go out on limb and suggest that the common factor -race- linking all these current gaps might still be a (conscious or otherwise) factor in people’s decision making.
8. Supreme Court Poised To Smack Down Affirmative Action, Sahil Kapur, TMC
The court is expected to issue either a narrow ruling or a broad ruling against race-based admissions. It could simply rule that UT’s policy is a violation of acceptable use of racial preference, which would not directly affect other colleges but would provide ammunition to chip away at other Affirmative Action systems. Or it might go big and overrule the 2003Grutter v. Bollingerdecision that’s the linchpin of Affirmative Action in higher education.
“If the Supreme Court holds thatGruttershould be overturned,” Fitzpatrick said, “it would pretty much end Affirmative Action in every school in the country, public or private.” He said it’s possible such a ruling could even apply to workplaces, although he predicted that the court is more likely to issue a narrow ruling against UT’s race-based admission policy.
…The court’s third option, to uphold UT’s use of race in admissions, is seen as highly unlikely given that it has swung against Affirmative Action ever since Justice Samuel Alito replaced Justice Sandra Day O’Connor in 2006.
An important thing to note is that the plaintiff inFisherhas asked the Supreme Court to reconsiderGrutteritself. And the court accepted the case knowing that it would have no effect on the plaintiff, who is set to graduate from another college this year. That’s an indication that the justices are interested in revisiting the principles that went into the 2003 decision, which held 5-4 that colleges have compelling reason to consider race in the admissions process.
…Sandra Day O’Connor, the swing vote onGrutter, is no longer on the Court, having been replaced by Samuel Alito, who has decided in the past against race-based admission policies in Ricci v. DeStefano, which overturned New Haven’s admissions for firefighters. Kennedy, Scalia and Thomas sided against O’Connor’s decision inGrutter, giving Fischer four votes in favor of overturning the law. Justice Elena Kagan has recused herself, leaving only four votes in play. One of them is Roberts, who also sided with Kennedy inRicci, and who, despite his vote upholding the ACA, is very much a conservative judge. If he sides with Fischer in favor of overturning Grutter, affirmative action goes down 5-3.
It’s possible the Court sides with Fischer on a limited ruling that merely overturns UT’s second-tier admissions poilcy. But the mere fact that they’ve accepted the case portends otherwise.
With this case in mind, a researcher at the University of Michigan, Liliana Garces, attempted to figure out what might happen in American graduate schools. Garces looked at the racial breakdown at public colleges in Texas, California, Washington, and Florida, which already have affirmative action bans in place. According to her paper, published by The Civil Rights Project:
Bans on affirmative action led to an estimated drop of 1.2 percentage points in the proportion of students of color enrolled across all graduate degree programs. Before any of the bans were implemented in each state, the average percentage of enrolled graduate students who were students of color was about 9.9 percent. The estimated 1.2 percentage point drop thus represents a decline to about 8.7 percent.
This is a significant, though not exactly astounding, difference.
This is hardly the difference between a wonderful world of great opportunities for ethnic minorities and the abyss, at least in part because it doesn’t look like affirmative action is really greatly increasing the presence of minorities on graduate school campuses anyway.
About 22 percent of Americans are ethnic minorities currently, more than double the figure for ethnic minorities in public graduate schools when they had affirmative action in place.
11. Supreme Court to rule on Affirmative Action, Jeneba Ghatt, The Washington Times Communities
The sad part, perhaps, is no matter how it turns out, there are many people out there who will assume most people of color with higher education degrees could not have gotten into college on their merit and scholastic scores alone. Even though they would be among the mere 35% of Americans with college degree, they will be presumed by some as Affirmative Action admits who were really not qualified to get into college on their merit and must be taking the spot of a white person. Even if they got into school based on merit alone, some people will automatically lump them in with other Affirmative Action admits.
12. Diversity’s Evidences, Len Niehoff, Inside Higher Education
This fall, the United States Supreme Court will consider the case of Fisher v. University of Texas, which asks whether that university’s use of affirmative action in admissions passes constitutional muster. I served on the legal team that defended the University of Michigan Law School admissions policy in Grutter v. Bollinger, where the Supreme Court held that fostering a racially diverse student body is a compelling state interest that colleges and universities can pursue in a narrowly tailored way. I believed that the Court correctly decided Grutter when I was helping to litigate the case, but I believe it even more firmly in my newer role as a law school faculty member.
In many other instances, a more self-definitive characteristic that a student possesses has ended up shaping their contribution to the classroom discussion in a poignant and powerful way. I recall, for instance, one day when we were working through a problem that involves the hearsay doctrine. In very general terms, that doctrine prohibits witnesses from repeating things in court that were said outside of court. Students often find the doctrine maddeningly complicated.
…We were discussing a scenario — based on an actual case — that presented the question of whether the tape of a phone call to a 911 operator should be admissible. In the tape, a woman who lived in an apartment building reported that several large dogs, owned by one of her neighbors, were attacking another neighbor in the hallway. The caller described the dogs, the people who owned them and were trying unsuccessfully to restrain them, and the location and severity of the attack. During the entire call, the woman remained in her apartment with the door closed.
I had taught this scenario for many years and the discussion consistently played out along the same lines. The students would recognize that the tape presented a hearsay problem. They would identify the exceptions discussed above as potentially applicable. And then they would spot a difficulty in applying those exceptions: because the woman listened to the commotion through her door and never left her apartment, she arguably did not have personal knowledge about the matters she was describing. This is how the discussion always had gone; this is how it always had ended.
On this occasion, however, a student raised his hand just as we were about to move on. “I’m sorry,” he said, “but I disagree with the conclusion. You’ve all wrongly assumed that you need to see something to have personal knowledge about it. This woman knew what her neighbor’s dogs sounded like. She could hear that they were attacking someone. She could recognize her neighbors’ voices. She could tell where the sounds were coming from. Granted, she didn’t see anything. But she certainly had personal knowledge of what was happening.”
The class sat in stunned silence. Of course, this student was right. He also happened — not incidentally — to be blind.
13. Supreme Court will hear case on affirmative action at college, David G. Savage, Los Angelos Times
In 1997, the Texas Legislature adopted the so-called “Top Ten” plan for choosing new students. As such, the University of Texas was told to accept the top 10% of the graduates from all the state’s high schools. The goal was to maintain racial and ethnic diversity in the freshman class without using race as a factor.
The plan appeared to work. By 2004, 21% of the entering students at the Austin campus were black or Latino, a higher percentage than when the university had used race-based affirmative action.
After the high court endorsed continued affirmative action through O’Connor’s opinion, Texas university officials announced they would again give a preference to “underrepresented minorities” beyond those who were admitted under the “Top Ten” policy. In 2007, the university announced a “record high” number of entering black and Latino students, who made up about 26% of the freshman class.
In 2008, Abigail Fisher was turned down for admission to the University of Texas. Her grades were not good enough to put her in the top 10% of her class, but she said her tests and grades “exceeded those of many of the admitted minority candidates.” She sued, alleging racial discrimination in violation of the Constitution’s guarantee of equal protection of the laws.
She lost before a federal judge and the U.S. 5th Circuit Court of Appeals, which said it was bound to follow O’Connor’s opinion from the University of Michigan law school case.
Her appeal argues that the 14th Amendment “requires an admissions process untainted by racial preferences absent a compelling, otherwise unsatisfied, government interest” in having some racial diversity. Since the University of Texas had already achieved diversity through the use of its “Top Ten” policy, it had no need to use race as an admissions factor, Fisher’s lawyers argued.
14. This amicus curiae brief from the Grutter case has some solid rationales for affirmative action. Look at the section on ‘cultural competence’ that starts on page 23.