United States Supreme Court takes on affirmative action in Fisher v. UT
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    Photo by Phil Roeder on Flickr. Licensed under Creative Commons.

    On Wednesday, Oct. 10, the United States Supreme Court will hear oral arguments for a case that may decide a very controversial part of college admissions: affirmative action. Fisher v. University of Texas concerns Abigail Fisher, a white student who was denied admission to the University of Texas (UT) at Austin, who feels that she was discriminated against on account of her race. 

    Northwestern University has participated in this case by filing an amicus (“friend of the court”) brief in support of the University of Texas and the use of affirmative action. In a statement, President Schapiro said, “In this Supreme Court deliberation, it is important that Northwestern be ‘on the record’ about the connection between [affirmative action] and our mission to pursue diversity and institutional excellence.”

    Race remains a controversial flashpoint on college campuses, as last year showed us. Affirmative action (or as it is formally known on college campuses, “race-conscious admissions”) remains a divisive subject, and logical arguments are often lost in the controversy. Below, NBN’s Alistair Murray takes us through three arguments Fisher and her supporters are likely to bring up in the weeks ahead, while Sam Niiro outlines three arguments that universities (including Northwestern) are likely to offer in defense of their policies.

    Arguments against Affirmative Action

    The strongest legal argument against the use of race in admissions comes from the dissents in the 2003 case Grutter v. Bollinger. Though the court ruled in favor of affirmative action here, four of the nine justices dissented. In his opinion, Justice Antonin Scalia disregarded the “educational benefit” that comes from having a diverse student body as redundant. He felt the importance of diversity was “essentially the same lesson taught to … people three feet shorter and twenty years younger than the full-grown adults at the University of Michigan Law School." He concluded that the Constitution prohibits government discrimination based on race, and “state-provided education is no exception.”

    Other students suffer
    Many opponents argue that accepting “less qualified” minority students results in reverse discrimination against “more qualified” white or Asian students. In other words, Asian and white applicants who have higher test scores and/or GPAs are being punished or adversely affected in admissions decisions because of their race. Abigail Fisher’s suit falls along this line of argument.

    It marginalizes minorities
    Others argue that affirmative action is, by nature, discrimination. Justice Clarence Thomas (the only current black Supreme Court justice) said in his dissent in Grutter v. Bollinger, “every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all.”

    Thomas’s experiences in higher education exemplify how affirmative action can negatively affect minority students. Justice Thomas put a 15-cent sticker on his Yale Law degree because he felt that he was only accepted because of his race. “You had to prove yourself every day,” he said about his experiences in the working world, “because the presumption was that you were dumb and didn’t deserve to be there on merit.”

    Arguments For Affirmative Action

    The United States of America is a common law country. Rulings and principles in previous legal cases are, if not legally binding, at least influential in deciding the outcomes of current cases. In this case, precedent favors affirmative action. In both Regents of the University of California v. Bakke (1978) and Grutter, the Supreme Court ruled that public universities are within their rights to use race as a factor in a holistic admissions process. The Supreme Court is under no obligation to respect precedent – otherwise, Brown v. Board of Education (1954) would not have ended segregation – but the rulings of previous cases provide a strong argument in favor of race-conscious admissions.

    Students need diversity
    In the case Grutter v. Bollinger, the Supreme Court ruled that race-conscious admissions do not violate either the Fourteenth Amendment or the Civil Rights Act of 1964, because universities have a “compelling interest” in promoting diversity. The positive impact of diversity on students’ attitudes and intellectual growth has been well-researched, and according to Northwestern sociologist Anthony Chen (about to release a book on the subject himself), “both the quantity of the available evidence and the quality of the available evidence, [suggest] that race-based affirmative action does benefit both groups of students”. Public universities, the argument goes, have every right to take race into account in admissions, so long as said use is educationally beneficial.

    It benefits students who need it most
    It is students of low socioeconomic status, not minority students, who are most disadvantaged by the traditional admissions process. As outlined here, the mean difference in SAT scores between the most advantaged and disadvantaged students (primarily a difference of socioeconomic status) is 784 points. The difference between white and black students, all other things being equal, is only 56 points. The fact remains, though, that minorities are disproportionately impoverished. Perhaps a more ideal solution would be taking socioeconomic status into account, but until then, race-conscious admissions remain a useful measure.

    The Likely Outcome

    To understand how the Court will probably vote this time, it is instructive to look back to Grutter v. Bollinger, which ruled in favor of affirmative action. Five justices from that decision remain on that court, three of whom (Scalia, Thomas and Anthony Kennedy) were against affirmative action, while two (Ruth Bader Ginsburg and Stephen Breyer) were for it. Of the four new justices, Sonia Sotomayor, who calls herself the “perfect affirmative action baby,” is very openly in favor of affirmative action. Justice John Roberts, who called affirmative action “highly objectionable” and Justice Samuel Alito, who was a member of an anti-affirmative action group of Princeton alumni, are almost certainly against it. Justice Elena Kagan has recused herself from the case, since she handled it while working as solicitor general. This makes the case a likely 5-3 ruling favoring Fisher, and against affirmative action. This could mean the end of affirmative action at Northwestern, as well as at other private institutions. Only nine years after Grutter, college admissions is set to undergo another upheaval.

    With thanks to Dr. Anthony Chen of the Department of Sociology for his professional input.

    Editor's note, Oct. 11 at 1:10 pm: The original version of this article predicted a 5-4 ruling favoring Fisher, but Elena Kagan's recusal from the case would produce a 5-3 ruling. The article has been updated to reflect the oversight. Thanks to commenter Nathan for pointing out the error.


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