Fisher v. University of Texas: A Guide to Effective Public Discourse

JURIST Guest Columnist Lena Martinez-Watts, St. John's University School of Law Class of 2013, is the author of the second article of a 15-part series from the staffers of the Journal of Civil Rights and Economic Development. She offers insight into the delicate background and issues in Fisher v. University of Texas...
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The US Supreme Court has agreed to hear Fisher v. University of Texas, a case about the use of race as a factor in college admissions. Although the court will examine a unique admissions system, wherein the bulk of students are admitted under a race-blind admissions program called the Top 10 Percent Plan, most commentators are framing the issues broadly and speculating that the Court could use this case to mark the end of affirmative action in college admissions.

This case means that race and the educational achievement gap are going to be all over the news and the subject of public discourse dressed up as a violent turf war. As a result, many aspects of this case and affirmative action in general may be misconstrued. It is worthwhile to clarify certain points regarding Fisher in order to have effective public discourse.

The Beginning of Affirmative Action

The term "affirmative action" emerged in 1961 as part of President John F. Kennedy's Executive Order 10925, which addressed discrimination and segregation in the workplace. Three years later, the Civil Rights Act of 1964 addressed discrimination and segregation in the context of education, effectuating Brown v. Board of Education by withholding funds from public schools and federally assisted programs that failed to devise effective desegregation plans. Although the Act did not employ the specific term affirmative action, it developed the concept of affirmative action policy by acknowledging that proactive steps were necessary to comport with new laws. As President Lyndon B. Johnson elaborated in 1965:

You do not wipe away the scars of centuries by saying: Now you are free to go where you want, and do as you desire, and choose the leaders you please. You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, "you are free to compete with all the others," and still justly believe that you have been completely fair ... This is the next and the more profound stage of the battle for civil rights.
In 1968, the Court reinforced this notion that passive desegregation plans were inadequate, holding that "freedom-of-choice" did not satisfy the requirements set forth for desegregation and that "school boards ... operating state-compelled dual systems were nevertheless clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch."

Holistic File Review

Although the Top 10 Percent Plan fills the bulk of seats at the University of Texas, this is not the portion of the admissions system that is being challenged. What is being challenged is the use of the "holistic file review" system to fill the remainder of seats. This system is used all over the country and is modeled after the Harvard Plan, which the Court has applauded as a fair use of race in college admissions.

A holistic file review system means that admissions officers are looking at more than SAT scores and GPAs to determine who should be awarded admission. Here, officers read admissions essays and recommendation letters first to assess an applicant's writing skills and then to understand the context in which his or her scores were earned.

These factors that officers examine to understand context include: extracurricular involvement, awards and honors, community service, leadership and personal circumstances. The personal circumstances category is subdivided into a second set of factors: family socio-economic status, school socio-economic status, family commitments and race. Taking this list of factors into account, admissions officers provide a comparative analysis of applications to choose the stronger, more qualified applicant. The procedure shows that race is only one factor in a subset of other factors that admissions officers consider. Knowing exactly how race is being used will hopefully inform misunderstandings about what affirmative action means in practice.

Typically, arguments about Fisher revolve solely around quotas, point systems and socio-economic disadvantage. However, legal arguments must revolve around the framework used by the University of Texas, with due consideration to these other relevant factors.

Socio-economics and Re-Defining Merit

Many people argue that the focus in admissions should be on socio-economic status instead of race because socio-economic status can be an important indicator of disadvantage. Luckily, the holistic file review system already takes this into account in the personal circumstances category. However, the use of socio-economic arguments to re-define merit begs the question: why is there no outrage that socio-economically disadvantaged kids are receiving admissions preferences?

In this context, most people see merit in the fact that poor kids have to work for many of the things that rich kids are handed. Similarly, there is merit in the fact that students of color make their achievements while dealing with the persistent effects of both past and present discrimination. At the same time, however, socio-economic status does not serve as an adequate proxy for race because people of color continue to suffer racial discrimination regardless of their income level.

Exclusion

Progressives often talk about "groups that have been historically under-represented in higher education." This articulation ignores the reasons students of color are under-represented in higher education. The achievement gap didn't just happen; it is a product of the fact that students of color were historically excluded from higher education.

The institution of slavery relied heavily on the systematic de-education of black slaves. From the onset, slaves were loaded onto slave ships in patterns that intentionally isolated them from others who spoke their language. This de-education process continued on American soil through laws that forbid slaves from learning to read or write and made it illegal for others to teach them. After the abolition of slavery, legislatures were free to work from the foundation laid by de-education to preclude blacks from voting. At the same time that they were systematically excluded from the voting process, blacks were also physically excluded from society by legislation that reserved certain physical space for "whites only." In Plessy v. Ferguson, the Court upheld these "Jim Crow" segregation laws, determining that "separate but equal" facilities were constitutional.

Decades later, the Federal Housing Administration (FHA) began to employ facially discriminatory practices that produced a new brand of institutionalized discrimination. During the redlining era, the FHA held, as policy, that the presence of even two or three black families could undermine property values. Geographically, this state-sponsored discrimination created largely segregated communities in which suburban whites were allowed to reap the financial benefits of homeownership while urban blacks were limited to renting apartments which afforded no such equity.

By understanding the background of the issues underlying Fisher v. University of Texas, it is possible to have an effective conversation about the case without encouraging argumentative discourse.

Lena Martinez-Watts serves as an Articles Editor on the Journal for Civil Rights and Economic Development. She has worked as a legal intern at the Latino Justice PRLDEF, the Native Hawaiian Legal Corporation, the Community Service Society and the Legal Aid Society.

Suggested citation: Lena Martinez-Watts, Fisher v. University of Texas: A Guide to Effective Discourse, JURIST - Dateline, Sept. 3, 2012, http://jurist.org/dateline/2012/09/lena-martinez-watts-affirmative-action.php.



This article was prepared for publication by Elizabeth Imbarlina, the head of JURIST's student commentary service. Please direct any questions or comments to her at studentcommentary@jurist.org

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