In 2008, Abigail Fisher, who is white, sued the University of Texas at Austin for race discrimination. The school rejected her, and she blamed its affirmative action program, which considers race and ethnicity in a “holistic review” of certain candidates. “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 explained.
Her rhetoric aside, however, Fisher and her lawyers couldn’t prove discrimination in court. In 2009, a federal district court upheld the university’s policy and rejected her lawsuit. She appealed the decision to the 5th U.S. Circuit Court of Appeals, which upheld the prior ruling. In a last grasp for success, her lawyers appealed their case to the Supreme Court, which—in a 7–1 decision—vacated the previous ruling and sent it back to the 5th Circuit for a second hearing. Writing for the majority, Justice Anthony Kennedy explained that the university hadn’t proved “its admissions program [was] narrowly tailored to obtain the educational benefits of diversity.” Everyone had to try again.
That was 2013. The 5th Circuit returned to the question, and last year it came to the same place: UT’s policy was constitutionally kosher. “It is equally settled that universities may use race as part of a holistic admissions program where it cannot otherwise achieve diversity,” wrote the 2–1 majority. Undeterred, Fisher appealed to the Supreme Court again. And on Monday, the Supreme Court took her case, again.
What’s striking about this case—and what makes it frustrating to some observers—is the curious question of Fisher’s academic record. Put simply, as Nikole Hannah-Jones documented for ProPublica, affirmative action wasn’t her problem.
If you want entrance to UT Austin and you live in Texas, you have three options: You can score in the top 10 percent of your high school class, which grants you automatic entry; you can try for the non–top 10 slots; or, if your grades are weak, you can attend a satellite campus and transfer, provided good grades and a strong course load.
When Fisher applied in 2008, notes Hannah-Jones, the UT Austin filled 92 percent of its in-state spots with students from the top 10 program. She wasn’t among them. With a 3.59 grade-point average and a modest SAT score of 1180 out of 1600, she was a solid student but not a great one, not for a school with an overall acceptance rate of 40 percent and an extremely low acceptance rate (comparable to Harvard’s) for in-state students admitted outside of top 10.
For the remaining 8 percent of in-state spots, UT Austin used a comprehensive approach that weighed grades and test scores along with essays, leadership, activities, service to the community, and “special circumstances.” Those ranged from socioeconomic status and school quality, to family background and race. As the university’s director of admissions explained for the 5th Circuit, “[R]ace provides—like language, whether or not someone is the first in their family to attend college, and family responsibilities—important context in which to evaluate applicants, and is only one aspect of the diversity that the University seeks to attain.”
Neither special circumstances nor grades were determinative. Of the 841 students admitted under these criteria, 47 had worse AI/PAI scores (a combination of the holistic measure, grades, and test scores) than Fisher, and 42 of them were white. On the other end, UT rejected 168 black and Latino students with scores equal to or better than Fisher’s.*
To call this discrimination is to say that Fisher was entitled to a space at the UT Austin, despite grades that didn’t make the cut. It’s worth pointing out that the university gave her the choice of transferring from a satellite school, which she rejected.
Fortunately for Fisher, this latest trip to the high court might be the try that sticks. At least four Supreme Court justices believe affirmative action is unconstitutional. In his concurrence to the first Fisher opinion, for instance, Justice Antonin Scalia wrote, “The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception.” Likewise, on the same grounds, Justice Clarence Thomas attacked affirmative action as morally equivalent to Jim Crow. Justice Samuel Alito has sided with affirmative action opponents in the past, and in reference to a voluntary school desegregation plan—which he struck down—Chief Justice John Roberts has said that “the way to stop discriminating on the basis of race is to stop discriminating on the basis of race,” as if race consciousness is the same as racism. Meanwhile, a member of the court’s liberal wing, Justice Elena Kagan, will recuse herself from hearing the case because she worked on it when she was solicitor general.
Given all this, most liberals aren’t optimistic. With that said, there’s an argument—from Richard Kahlenberg of the Century Foundation—that an end to race-based affirmative action will spur the country toward class-based affirmative action, which would assist poor and working-class students of all backgrounds, who are underrepresented at selective colleges. Because of disparities of wealth and income, minorities are as likely as whites to benefit under a class-based arrangement.
On that score, Texas—with its top 10 program—is a pioneer. Top 10 doesn’t adjust for neighborhood or school quality; the best student at an older, rural school is just as qualified for admission as the best student at a gleaming, suburban complex. With that said, Top 10 comes with two serious problems: Highly qualified students at great schools miss the cutoff, on account of high competition, while the best students from low-achieving schools are often unprepared for university work. Indeed, there’s a certain perversity to top 10, which achieves its racial diversity by leveraging neighborhood—and thus public high school—segregation. But, under a legal regime that only tolerates a “narrow” use of racial preferences in education—forcing race-neutral means for race-conscious ends—that outcome is inevitable. As Justice Ruth Bader Ginsburg wrote in her Fisher dissent, “I have said before and reiterate here that only an ostrich could regard the supposedly neutral alternatives as race unconscious.”
Finally, it’s worth repeating a point from the Economic Policy Institute’s Richard Rothstein, who notes—correctly—that “black families and their children suffer from compounded and inherited disadvantages that are unique, not like those of white or immigrant families who happen to be from lower social classes or who happen to live in low-income neighborhoods.” Race disadvantage is different than its class counterpart, and one affirmative action isn’t a substitute for the other.
But even if it were, it’s important to note that if the court ends race-based affirmative action, there’s no guarantee that we’ll see an alternative. Opponents of race-conscious policy in education are often opponents of “diversity” writ large and won’t be fooled into accepting measures to help boost diversity by the use of the word class instead of race.
Correction, July 2, 2015: This article originally misstated that 47 of the rejected students from University of Texas at Austin had worse grades than Fisher. They had worse AI/PAI scores. (Return.)