The Fisher anti-affirmative action case is proof that this isn’t a post-race society

By Kay Steiger
Wednesday, October 10, 2012 14:01 EDT
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African American college student (Shutterstock)
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On Wednesday the Supreme Court took up Fisher v. The University of Texas at Austin, a case that could have a huge impact on the future of admissions into colleges around the country. The central question justices will be examining is whether colleges can use race as any factor in deciding the makeup of its freshman classes. Or, more simply, this case could spell the end of the beleaguered policy of affirmative action on college campuses in this country.

If it sounds dire, it is. The Fisher case could validate the entrenched “reverse racism” resentment all too often found in arguments against affirmative action.

Though the Supreme Court found quota-based affirmative action to be unconstitutional in the Regents of the University of California v. Bakke case in 1978, the court also said in Gratz v. Bollinger, the case that declared unconstitutional the University of Michigan’s point-based affirmative action system, that “racial diversity” was an important goal in higher education. At the time, the court ruled colleges could continue to use race as a factor, just so long as it wasn’t the deciding one. Since then, colleges have employed “creative methods” in achieving racial diversity on campus without either rigid quotas or a points-based system. The case the Supreme Court heard on Wednesday, however, has many worried  any race considerations in admissions will be ruled unconstitutional.

It must first be noted that Fisher is an extremely special case, in part because it takes place in Texas. The Supreme Court had to force UT’s law school to admit a black man in 1950 when it decided the case Sweatt v. Painterd. Sweatt was excluded from admission in 1946 because “of the fact that he is a negro.” To pretend that Texas has shed its racial bias against people of color since 1950 is absurd on its face.

Today, Texas has a “top ten percent” policy that guarantees admission to those who graduate in the top ten percent of their high school classes, which takes up about 85 percent of UT-Austin’s incoming freshman class. Through combining the “top ten percent” policy more traditional admissions process that takes into account academic and extracurricular achievements — which also makes note of an applicant’s race — to fill the class, Austin was able to become a leader in awarding degrees to minority students, doubling the number of African American students and seeing substantial increases in other racial minority groups in its 2008 class.

The Fisher in question in the case the court takes up Wednesday was competing for 20 percent of the class that weren’t guaranteed admission because she didn’t graduate at the top 10 percent of her class (this percentage is now estimated to be around 15 percent) and is alleging that some lesser-deserving minority student took the spot to which she was entitled.

And entitlement is the key when it comes to opposition to affirmative action. To accept that affirmative action is no longer necessary would be to wrongly assume that we have officially entered “post racial” America.

As Emily Bazalon’s found in Tuesday’s Slate story, opponents to affirmative action sometimes assume they would be the natural choice but for the minority candidate who took his or her place. J.R. Constable wrote to Bazelon that he was “enraged” about not gaining admission to California State University at Fresno because, he claims he was told, there were “too many white males enrolled in your major.” But, as Bazelon points out, Constable applied for admission after quota-based affirmative action had already been overturned. They myth that he was displaced by someone somehow less deserving is somehow so entrenched that Constable continues to blame diversity for his failings throughout life.

“I still find myself once in a while having the thoughts that I missed a promotion because of my gender, or race,” Constable wrote. This assumes that the only racism that still exists in America is the mythical “reverse” kind, which blames white people for being white.

Meanwhile, colleges around the country are so pessimistic about the outcome of Fisher that they’re scrambling to recalculate how they can still achieve campus diversity without explicitly using race as a factor. If the Supreme Court eviscerates what little power colleges have to achieve a racially diverse student body, they’ll be validating that resentment that Constable and other opponents live in their own little world where people of color are unfairly advantaged in modern American life — and white people, who are “entitled” to do better, are paying the supposed price.

[Editor's note: Thursday we'll look at how colleges can still achieve racial diversity even if the Supreme Court overturns race-based affirmative action.]

[African American college student via Shutterstock]

Kay Steiger
Kay Steiger
Kay Steiger is the managing editor of Raw Story. Her contributions have appeared in The American Prospect, The Atlantic, Campus Progress, The Guardian, In These Times, Jezebel, Religion Dispatches, RH Reality Check, and others. You can follow her on Twitter @kaysteiger.
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