Thursday, July 7, 2016

The Fisher Decision and What It Means for Future Discussions of Race

By Karolina Ware (Intern at AAAED)

          Almost 40 years ago, the Supreme Court ruled in Green v. County School Board of New Kent County that all school boards had to establish a plan to desegregate the school systems in their district, in order to comply with the Supreme Court ruling of Brown v. Board of Education. Because of the integration of public schools, white middle class families moved out of cities to the suburbs and enrolled their children in private schools, allowing a new form of segregation to develop. Because racial diversity must be achieved in compliance with Green v. County School Board of New Kent County, students were often bussed across city and county lines. White families whose children were being bussed felt inconvenienced by the extensive busing and became more resistant to the idea of affirmative action.[1]

          This backlash eventually made its way to the Supreme Court in 1978, when a white student named Allan Bakke sued the University of California, Davis’ medical school after being denied admission. He claimed that, because the school reserved 16 out of 100 spots for students of color, their admissions process violated Title VI of the Civil Rights Act of 1964 and the Fourteenth Amendment's Equal Protection Clause.[2] The Supreme Court ruled in a 5-4 decision that the University’s use of quotas violated the Equal Protection Clause, but that race could be considered as one factor, along with many others, in the admissions process to promote diversity in the institution.[3] This case was upheld by Bollinger in 2003, and has emerged again in the case of Abigail Fisher and the University of Texas, Austin.[4]

          Fisher applied to the University of Texas, Austin in 2008 and was denied admission. The University employs an admissions process that admits all in-state high school seniors who are ranked in the top 10% of their class.[5] To fill the remaining spots, the admissions office examines many factors - including the applicant’s race. In her lawsuit, Fisher claimed that the consideration of race in admissions decisions violates the Equal Protection Clause in the Fourteenth Amendment. In the Supreme Court’s first review of this case, they decided that the appellate court did not apply the strict scrutiny standard to the University’s admissions policies and remanded the case. This means that the court did not examine the University’s policies carefully enough “in order to determine if it is narrowly drawn to serve a compelling state interest.”[6] The District Court of Appeals reaffirmed their decision that the consideration of race in the interest of promoting diversity is constitutional and Fisher appealed the case to the Supreme Court again.[7]

          Last week, the Supreme Court announced its 4-3 ruling that the consideration of race in the admissions process for the purpose of promoting educational diversity is constitutional. In the majority opinion, Justice Kennedy affirmed the University’s admissions policies; however he stated that “it remains an enduring challenge to our Nation's education system to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity.”[8] The Supreme Court made it very clear that the University of Texas, Austin, as well as other higher education institutions, must constantly be critical of their policies, and re-evaluate their processes often.

          This decision comes at a time when race continues to be a leading and heated issue especially on college campuses. Fisher allows for particular insight into the ways that racism manifests today in institutions of higher education. When looking deeper into the facts of the case, it is easy to see that this was not just a case against affirmative action, but more so one where Abigail Fisher felt entitled to a spot at the University of Texas Austin because of her whiteness. As indicated above, the University fills most of its spots with students who graduated in the top 10% of their class which, in this case, filled 92% of the spots in the accepted class. To fill the remaining 8% of spots, students are given an Academic Index (AI), comprised of grades, essays, and activities, and a Personal Achievement Index (PAI), which includes race, family background, and socioeconomic status. Fisher claimed that, because students of color with lower combined AI and PAI scores than hers were admitted while she was rejected, the school was discriminating against her for being white.[9] What Fisher’s case failed to mention, however, was that of the 841 admitted students who constituted that 8%, 47 of them had lower AI/PAI scores than hers, and of those 47, only 5 of them were students of color. Those 42 white students were not mentioned in her case because, when you think about the students who were accepted instead of Fisher, as well as the 168 students of color with AI/PAI scores that were as good or better than hers who were rejected, her case seems quite unsubstantiated.[10] This was not a case of “reverse discrimination,” as many of her supports would like to believe, but simply a situation where her white privilege was counteracted, and therefore did not allow her to coast by on the benefits of it. Fisher’s case was based on the idea that her whiteness could make up for her mediocrity, but it was framed in a way that makes colorblindness appear to be the only “truly fair” approach.[11]

          Colorblindness, or the idea that choosing not to see race is a neutral approach, has been posited as a progressive way to counteract racism but it only allows the existing systems that value and privilege whiteness to go unchecked. By ruling in favor of affirmative action, the Supreme Court reinforced the idea that we cannot yet count ourselves as a “post-racial” society, and that we must continue to see race and actively work to dismantle systems of privilege and oppression that have been institutionalized.[12] Colorblindness actively removes race from discussions, which perpetuates racial inequities and further harms students of color. By choosing not to see race in the admissions process, schools are showing students of color that they are not acknowledging the prejudices that have been ingrained into their institution, and that most likely translates to the treatment of students of color on campus. This especially manifests in, for instance, financial aid packages and scholarships, and funding of students centers that are specifically for students of color and international students. Conversations about racism, in which the voices of students of color are prioritized, need to happen consistently and throughout every aspect of the school to ensure that it is constantly working to deconstruct systematic inequalities on every level. This dialogue also needs to translate into the way students of color are supported on campus. These conversations are important, but they also need to create change so students of color have resources, and ensure that needs are being met.

          Higher education institutions must continue to show up for and support students of color, and be willing to be critical of themselves. They must be held accountable and actively address discrimination not only in the admissions process, but also throughout the institution for the admitted students. Conversations about systematic oppression and discrimination are happening in various spaces, like college admissions, hiring practices, the relationship between race and incarceration/law enforcement, and many others all over the country and they must continue to be critiqued and challenged. Words need to be followed by actions in order for racism and oppression to truly be dismantled. Fisher’s case furthered the race and racism conversation in mainstream media. While many believe that race and racism are dead, both are still very much alive and must continue to be intertwined in dialogue, as well as activism, because injustice does not end with tomorrow’s headlines.

Works Referenced:

Barnes, Robert. "Supreme Court Upholds University of Texas Affirmative-action Admissions." Washington Post. The Washington Post, 23 June 2016. Web. 05 July 2016.
Cahn, Emily. "The Supreme Court Just Saved Affirmative Action in a Landmark Case." Mic. Mic, 23 June 2016. Web. 5 July 2016.
Chicago-Kent College of Law at Illinois Tech. "Fisher v. University of Texas." Oyez. 05 July 2016.
Edwards, Stassa. "SCOTUS Upholds UT's Affirmative Action Program, Knocking Abigail Fisher on Her Ass." The Slot. Jezebel, 23 June 2016. Web. 05 July 2016.
Gandy, Imani. "Abigail Fisher: The Aggrieved White Woman Who Could Destroy Affirmative Action." Rewire. Rewire, 9 Dec. 2015. Web. 5 July 2016.
Garces, Liliana M. "After Supreme Court's Fisher Decision: What We Need to Know about considering Race in Admissions." The Conversation. The Conversation, 23 June 2016. Web. 05 July 2016.
Hannah-Jones, Nikole. "What Abigail Fisher’s Affirmative Action Case Was Really About." ProPublica. ProPublica, 23 June 2016. Web. 05 July 2016.
Imani, Kwanzaa. "Abigail Fisher, Please Stop Blaming People of Color for Your Mediocrity." For Harriet. For Harriet, 2015. Web. 05 July 2016.
Kenney, Tanasia. "Abigail Fisher Easily Becomes the Butt of the Joke After Supreme Court Upholds Affirmative Action Case - Atlanta Black Star." Atlanta Black Star. Atlanta Black Star, 23 June 2016. Web. 05 July 2016.
Kingkade, Tyler. "#StayMadAbby Makes Triumphant Return After Supreme Court Affirmative     Action Ruling." The Huffington Post. The Huffington Post, 23 June 2016. Web. 5 July 2016.
Liptak, Adam. "Supreme Court Upholds Affirmative Action Program at University of Texas." The New York Times. The New York Times, 23 June 2016. Web. 05 July 2016.
Mansky, Jackie. "The Origins of the Term "Affirmative Action"" Smithsonian. Smithsonian, 22 June 2016. Web. 05 July 2016.
Marcotte, Amanda. "Abigail Fisher’s Supreme Court Loss: A Massive Blow to Mediocre White People Coasting on Their Racial Privilege." Salon. Salon, 23 June 2016. Web. 5 July 2016.
Markus, Bethania Palma. "Twitter Rips #BeckyWithTheBadGrades Abigail Fisher after SCOTUS Upholds Affirmative Action." Raw Story. Raw Story, 23 June 2016. Web. 05 July 2016.
McBride, Alex. "Regents of University of California v. Bakke (1978)." PBS. PBS, 2007. Web. 05 July 2016.
Peralta, Eyder. "Supreme Court Upholds University Of Texas' Affirmative Action Program." NPR. NPR, 23 June 2016. Web. 05 July 2016.
Stern, Mark Joseph. "Supreme Court Affirms Constitutionality of Texas Affirmative Action Program." Slate Magazine. Slate, 23 June 2016. Web. 05 July 2016.
"Strict Scrutiny." Def. 1. N.d. Merriam-Webster. Web. 5 July 2016.

[1] Jackie Mansky, "The Origins of the Term ‘Affirmative Action’" Smithsonian (Smithsonian, 22 June 2016) 05 July 2016.
[2] Alex McBride, "Regents of University of California v. Bakke (1978)." PBS (PBS, 2007) 05 July 2016.
[3] Mansky.
[4] IBID
[5] Chicago-Kent College of Law at Illinois Tech. "Fisher v. University of Texas." (Oyez) 05 July 2016.
[6] "Strict Scrutiny." Def. 1. N.d. Merriam-Webster. Web. 5 July 2016.
[7] Chicago-Kent College of Law at Illinois Tech.
[8] Eyder Peralta, "Supreme Court Upholds University Of Texas' Affirmative Action Program," NPR ( NPR, 23 June 2016) 05 July 2016.
[9] Kwanzaa Imani, "Abigail Fisher, Please Stop Blaming People of Color for Your Mediocrity." For Harriet (For Harriet, 2015) 05 July 2016.
[10] Nikole Hannah-Jones, "What Abigail Fisher’s Affirmative Action Case Was Really About." ProPublica (ProPublica, 23 June 2016) 05 July 2016.
[11] Imani.
[12] IBID

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