Supreme court could outlaw affirmative action nationwide

By Erika DeLeo

When a Texas teenager was denied admission to one of the most popular universities in her state, she claimed it was because of her race.

In 2008, Abigail N. Fisher, from a high school in southeastern Texas, sued the University of Texas at Austin for denying her admission that year. She claimed minority students who were less qualified got in, and that this violated the Fourteenth Amendment’s guarantee of “equal protection of the laws.” Fisher v. University of Texas then passed through two lower courts that sided with the university. Ms. Fisher appealed the case to the U.S. Supreme Court, and on Feb. 21, 2012, the court agreed to hear the case this fall.

The court will decide if American universities still have the right to consider race in their admissions processes. It will decide if racial diversity in higher education is important enough to put white and Asian students at a disadvantage. A 2003 U.S. Supreme Court case, Grutter v. Bollinger, upheld affirmative action in university admissions, but only under strict criteria. One criterion is that to be allowed to consider race directly, the university must first exhaust race-neutral alternatives. Universities in Texas use one alternative called the Top Ten Percent law.

Any Texas high schooler who graduates in the top ten percent of his or her class is granted admission to any public university in the state. This includes selective UT Austin, which admits only forty-seven percent of applicants, according to U.S. News & World Report. Top Ten Percent law creates an even playing field between schools that are disadvantaged and those that have many resources.

At UT Austin, about eighty percent of any given year’s incoming class is filled by Top Ten Percent students, according to the university. For the remaining twenty percent of spots, being black or Hispanic is an advantage. Fisher narrowly missed guaranteed admission. She landed in the top twelve percent of her class. Fisher’s lawyer claimed that the Top Ten Percent law should be enough to foster diversity, so it should be unnecessary to consider race for the remaining twenty percent. “If the Plaintiff [is] right … then every public university in the United States would be prohibited in considering race in their admissions process,” said a court brief from the Western District of Texas.

Fisher and her lawyers could win. Nine years ago, Grutter barely passed in a 5-4 vote. The court decided that diversity served the purposes of higher education. The deciding opinion was cast by Justice Sandra Day O’Connor, who has since retired. Justice Samuel Alito, who is known to vote conservatively, since has taken her place.
Justice Elena Kagan, who would have been expected to support affirmative action in Fisher, has recused herself because she was involved with the case previously.

This means there is a chance that Grutter will be overruled, which will ban affirmative action at all American public universities. According to the Huffington Post and many other news outlets, Justice Anthony Kennedy’s vote is affirmative action’s only chance. Yet when Kennedy voted in Grutter, he did not support affirmative action.

This fall, the court will seek to answer long-debated questions about the policy. Four local leaders in higher education and one minority student weighed in.

Is affirmative action effective?

Yavapai College President Dr. Penelope H. Wills sat in her spacious office furnished with sculptures made by students, including a four-foot-tall welded metal rabbit she named Kimmy. “Do you legislate … to help change a culture?” she asked rhetorically. “Sometimes social norms will work. Other times, society has to make a law out of it, to make sure it sticks,” she said.

She sees affirmative action as more an individual than policy matter. “How do we go ahead and be more responsive to our culture here? … Where are the Native Americans? Where is the Hispanic population? They’re here. I see them every morning.” Then, with emphasis, “but are they here?” She motioned to the campus around her.

Michelle Tissot, Director of Admissions at Prescott College, emanated a sense of peace in her opinions on affirmative action. “Diversity should be a necessary aspect of every student’s higher education and student experience. Without that opportunity to engage with others in a meaningful way — have the dialogue, share the food, talk about childhood experiences — I think you miss out on a lot.” She admitted that “there is a tension between running a business and meeting our mission.” One barrier to bringing more diversity to Prescott College is the cost of attendance.

Mary Poole, Ph.D., teaches Prescott College courses on U.S. history and race in America. “Affirmative action alone cannot change racial inequality in the U.S., which is profound and based in economics. If you look back through the 20th century, every time there have been economic opportunities for distributing wealth more equitably between white Americans and people of color, such as the massive investment of the federal government in private housing in the 1950s and ’60s, that wealth is structurally funneled into white communities. … The problems are structural, not a result of the racial prejudice of white people or lack of initiative of people of color. So changes need to also be structural. Affirmative action is imperfect for sure, but it is better than nothing.”

Jada Boyd is one of the few African-Americans at Prescott College. She came to Prescott from Clarksville, Tenn. She lived among the middle class, but noticed how neighborhoods and schools were divided along racial and economic lines. Her high school did not cater to ambition.

“They weren’t trying to tell [us] … about any cool places to go to school at. What we did have all the time was military: the Army, Navy. They were posted up in our cafeteria like every week,” she said. Boyd found Prescott College through internet research. “Our guidance office, they only had ads for military stuff … and for … local places, pretty much.” She was one of the few in her class who left the state for college.

Thomas M. Rajala is Dean of Embry-Riddle Aeronautical University in Prescott. “Our decisions have to be driven by academic credentials. However, if we had one spot left in the class, and we had two students who were applying who had identical academic credentials, we would probably opt for the person who would bring some added diversity.” The school generally does not use affirmative action in its admissions because students with sufficient academic credentials tend to self-select. “As this moves forward, I think most colleges are going to say it would not be a good thing for campuses in general if affirmative action went away,” said Rajala.

What role does diversity play in higher education?

“The goal of diversity in education is justice — equal access to the best things our society has to offer to all the people,” Poole said.

Rajala said, “If what we’re about is preparing students to do great work when they finish their college career, when they do, it isn’t going to be in a vacuum. It isn’t going to be in a sealed-off place where you only encounter people of your own background. If part of the educational environment can be reflective of a national and global economy, that’s going to benefit our students. The value of diversity on campus, to me has always been — I mean it’s a dose of reality therapy. Campuses should be a slice of real life and not a sealed-off, artificial environment.”

Boyd has focused on cultural studies at Prescott College. In her classes, “everybody is learning about all this stuff about racism and new racism … but [they aren’t] really able to engage in it with people of color. I’ve had so many people be like, ‘I don’t see you as black.’ Like, that really happens! And it’s like, I understand what you’re trying to say, but …” she burst out, “duh!”

Boyd went on, “I think it’s important because people need to learn how to interact with each other. [Diversity in the classroom is] cultural capital, too … I came to Prescott College and I didn’t know what quinoa was, I didn’t know what slacklining was … but then I’d know some [things] from where I’m from, but people didn’t know around here. It’s just exchanging cultural knowledge, basically.”

Tissot said, “In this world, it’s no longer acceptable to believe that you cannot engage with people of diverse backgrounds. The more we come together in understanding and sharing experiences, the better, I think, that we will all be able to move our causes, our passions, forward.”

When, if ever, will the goals of affirmative action be achieved? What will it look like?

Boyd pointed to issues surrounding the media, ethnic studies, and black intellectuals as places where racism might be remedied. “The way they teach history in schools … like with the ethnic studies thing, they were clearly like, this is making everyone’s grades so much better because they’re learning about some real [topics] that relate to them.” She also said people of color are negatively portrayed in the media, which peddles stereotypes that keep racist ideas alive. Black intellectuals need to be socially accepted by the black community instead of thought of as outsiders, she thinks.

Tissot said, “It will require all of us who believe this is important to continue sharing the message and asking the questions and making good choices.”

“If we had an inclusive environment … we would have world peace. Our history shows [being prejudiced] is just the nature of being human,” said Wills.

Rajala agreed that the aims of affirmative action are far from reached. “I still think we have a long way to go.”

Poole pointed out that “even well intentioned people tend to do what people do: make the opportunities that come their way available to the people in their lives, their families and friends, and people that are culturally like themselves. Justice requires that those of us with privileged access to things like education and employment resist that temptation and take on the challenge of welcoming people into the community who are culturally and economically different. It’s hard and sometimes messy work. But justice requires no less.”

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