Affirmative Action on Trial at U.S. Supreme Court

The U.S. Supreme Court heard arguments about Affirmative Action this week and some observers didn't like what was said.

‘Alive but Ailing’

“Affirmative action is alive but ailing, the idea of ‘critical mass’ to measure racial diversity is in very critical condition, and a nine-year-old precedent may have to be reshaped in order to survive. Those were the dominant impressions at the close of a one-hour, nineteen-minute argument in the Supreme Court Wednesday,” said veteran U.S. Supreme Court reporter Lyle Denniston at SCOTUSblog, after the Court heard arguments in the case of Fisher v. University of Texas at Austin.

Embarrassed for the Court

“Critical mass” is the idea that there need to be enough students of color attending a school to overcome a sense of “racial isolation,” explained Linda Greenhouse at The New York Times. Greenhouse was embarrassed for the court after acquainting herself with its questions, she said. “Of the four justices most intent on curbing or totally eradicating affirmative action — Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Samuel A. Alito Jr. and Clarence Thomas — the three who spoke (minus Justice Thomas, of course) failed to engage with the deep issues raised by Fisher v. University of Texas. …It was impossible to avoid the conclusion that ridicule rather than a search for understanding was the name of the game.”

Plaintiff ‘Failed to Meet Threshold’

The plaintiff in the case, Abigail Fisher, “failed to meet the threshold of being in the top 10 percent of her graduating high school class — which would have automatically guaranteed admission to UT,” said Edward Wyckoff Williams at The Root. He went on to argue that “four decades after legalized discrimination was still codified in law, racial disparities persist at nearly every level of American society. From criminal justice to education, employment to housing, minorities in general and African Americans in particular continue to face an uphill battle toward social and economic equity.”

Affirmative Action for Whites

Williams also mentioned a new book, What’s the Matter With White People? in which the author, Joan Walsh, reminds readers that “white Americans enjoyed the benefits of the Great Society social welfare programs, in particular the postwar GI Bill, expansion of public universities, FHA mortgage-lending guarantees and union jobs … amounting to affirmative action government policies for poor and low-income whites — and often, almost explicitly, excluded African Americans and other people of color.”

Selective Resentment

At The Huffington Post, Steve Nelson accused Fisher of having her cake and wanting to eat it too and he accused the court of appearing “ready to hand her a fork.” Said Nelson: “The young white woman, a recent graduate of Louisiana State University, filed the lawsuit now being considered because, she claims, she was unfairly denied admission to the University of Texas. One might argue whether the distinction between these two institutions is so great that Fisher had standing to bring the case at all. She claims that this allegedly diminished pedigree has done her grievous harm. Whatever. Lots of kids don’t get into the colleges they most desire. Did Fisher, or those who advised her to sue, choose to complain that some other white student of ‘lesser qualification’ won the spot she so dearly coveted? No, it was only the allegedly ‘inferior’ black applicants whom she apparently resents.”

Court’s High Bar Cleared

Noting that “the Supreme Court has [previously] insisted that any affirmative action plan must meet the test of ‘strict scrutiny’ — that is, that the plan must be ‘narrowly tailored’ to serve a ‘compelling interest,’”Greenhouse said “the justices obviously know that the court has concluded that affirmative action in higher education admissions can clear that high bar — as it did nine years ago in Grutter v. Bollinger, the University of Michigan Law School decision.” So, she concluded, “There was a context in which the Regents of the University of Texas, following upon the Michigan decision, chose to act, a history they sought to acknowledge, and a better future they hoped to achieve for their diverse state by supplementing the unsatisfactory and mechanical ‘top 10 percent admissions plan with one that considers each applicant as an individual — with race as ‘only one modest factor among many others.’”

‘Temporary Measure’ to Permanent Entitlement

At Forbes, Bill Frezza wondered how “a set of ‘temporary measures to level the playing field’ become a permanent entitlement advantaging even minorities from wealthy backgrounds over white kids who grew up in poverty?” Frezza advised readers to take the approach that blond-haired, blue-eyed U.S. Senate candidate Elizabeth Warren did when she identified herself as a Native American on a Harvard Law School job application. Said Frezza: “Suppose enough of us chose to adopt the Warren standard? After all, every human being has ancestors that came from Africa, however remote. Who’s to say we don’t identify with them?And therein lies the fastest way to put an end to affirmative action without relying on the courts or the ballot box.”

Clever, isn’t he?

Downside for People of Color

Frezza and Fisher are obviously not alone in their disdain for Affirmative Action. Some however, are uncomfortable about it for entirely different reasons. At CNN, for example, LZ Granderson said, “If I had a nickel each time a white guy e-mails or tweets that I have my job because I’m black, I wouldn’t need the job, because I’d be rich. This is at the heart of a little talked about secret regarding affirmative action: A lot of black professionals don’t like it either. Not because they think the playing field is necessarily leveled, but rather their skills and talents are constantly being slighted by whites who think their jobs were given to them solely because of their race.”

Big Business Backs It

Big business, meanwhile, is on the aside of Affirmative Action, according to Bloomberg Businessweek. “Some of the biggest corporations in America say that having a diverse payroll helps boost sales, and they want the Supreme Court to keep that in mind as it considers this term’s affirmative-action case,” the article said.

What do you think?

Should Affirmative Action become another entry in the history books or is it still necessary for leveling the playing field?

About the author, Christine A. Scheller

Christine A. Scheller is a widely published journalist and essayist, and an editor-at-large at UrbanFaith. She lives with her husband at the Jersey Shore and in Washington, DC, where she helps facilitate dialogue between scientific and religious communities.
  1. The downsides are far too great. Rather than affirmative action, they should simply create full-ride scholarships for underrepresented minorities. Make it easier on minorities in other ways other than relaxing academic requirements. Why? Like you mentioned, by relaxing academic requirements, recruiters will always question the credentials/talent/intelligence of those who fall into the demographic that qualify for such relaxation of requirements. Most recruiters know affirmative action exists and will ALWAYS ask themselves, “Did this person earn their spot? Knowing that the school may not have vetted this person fully, can I trust that this person is as intelligent/talented as a white person from the same school would be? Do i want to take the risk? Do I have the time/money to take the risk of verifying this person’s talents for myself by watching them perform on the job? IF I hire this person and find that this person is not up to par, can I fire this person without others misunderstanding and crying racism? Do I want to take that risk? Would it simply be easier to avoid hiring this person from the get go?”

    Half the reason why going to an Ivy is so impressive is the vetting process (admissions process). If you made it through, we can assume that you are an amazing student. Relaxing the requirements removes this assumption for minorities. Sure, you are smart for a Black student, but can I be sure that you are smart even compared to a White student? Recruiters therefore are in doubt. Some may want to take the risk, who knows, you may hit an Obama, someone who was smart enough to get in anyway, so lets not discriminate. But if I am a small company, can I afford to risk it? What if this person is a dud and I find it difficult to let this person go?

    Many blacks probably would have gotten into a top school anyway. Obama graduated in the top 10% of his class. He probably could have gotten in anyways and excelled. Justice Thomas is another good example. Lets not let talented people like these walk into interview rooms with a handicap because recruiters are unsure whether or not these students earned their spot or were given pity marks on their application for being Black.

    And if you want to use affirmative action, maybe don’t let the world know you are doing so! (kinda sleezy if you don’t, but how else do you prevent the downsides?)

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