Discrimination and Affirmative Action: SCOTUS Takes Another Case

The Supremes have agreed to rehear Fisher v Texas in the upcoming term. The  version you’ll hear is that Abigail Fisher sued the University of Texas, Austin on the grounds that she was refused entry because she was white, thus a reverse-discrimination claim. The larger issue is race-based admissions, or affirmative action.

Actually, that’s not what this case is about, not even close. Abigail Fisher is a cute, young white woman chosen to be the face of a suit paid for by Edward Blum, who’d been looking for someone like Fisher for a number of years.

Abigail Fisher didn’t get into UT-Austin NOT because of the colour of her skin, but because her grades weren’t good enough. She ended up at the University of Louisiana, graduated, is gainfully employed and all she really wants is the hundred dollars she spent on application fees. Full story after the jump.


The University of Texas has a number of campuses, with Austin being the crown jewel. Texas has been dinged in the past because of discrimination and therefore has a program for admitting students in the top 10% of their class. Thus, kids from lesser schools can still go to a great state university. The suits date back to 1950. Until then, the University denied admittance to all blacks because the state constitution required all schools to be segregated by race. (Yes really.) But Heman Sweatt sued, saying that since Texas had no law school for blacks, he should be admitted to UT-Austin.  The state cobbled together a parallel law school, but the Vinson Court found that it was a sham, and Sweatt was admitted to UT-Austin. Over the years, there have been additional cases finally leading to the Top 10% program, but the hatred has never dissipated.

Thus, the Fisher case. The far right sues on all sorts of things, most recently the Obamacare case, where they find people to use as strawmen who look a certain way, even if their relationship to the suit is tenuous at best. In this case, Fisher no longer cares, doesn’t really want anything this disruptive in her life, but went along for reasons that belong to her alone. When the Supremes looked at this case in 2013, they sent it back for review with a 7-1 vote. It was a narrow decision, which basically said more information was needed to be sent through the lower court. Previously, Roberts had said:

“The way to stop discriminating on the basis of race is to stop discriminating on the basis of race.”

Yes, he really said that in 2007, in Community Schools v. Seattle School District. A lot like saying that the way to stop meth addiction is to just stop shooting up. In the Fisher case, Kennedy, writing for the majority said basically that it’s not enough to just say “stop it” – you need actual structure and law.

But the right wing never stops their hating, and so the court will hear this again. And you can directly blame that on Sam Alito, the most overturned appellate judge in American history. Until 2006, Sandra Day O’Connor was the voice of reason on affirmative action, but with her retirement, we got Sam, and he’s a hater.

It is astounding to me how much the world has changed since the 1978 Alan Bakke case. This was the first case where a white man sued because he had been denied admission to medical school based on being white. Everything was so fractured that the Supremes penned six separate opinions and left “affirmative action” rules opaque and subject to further consideration.

Since Bakke, more and more groups have claimed discrimination: skin colour, national heritage, gender, sexual orientation, disability, age — it often seems as though no one feels they have NOT been discriminated against.

What gets lost in the rhetoric is that while there is certainly discrimination on all sorts of grounds, there is a question of merit, and it seems that as a country, we no longer care about merit. Our other values compete so hard with one another that “best” is an afterthought.

Here’s an example. Identical resumes are submitted and only the name is different.  The Hispanic name is immediately rejected but the Anglo name is given an interview. This is obvious discrimination because the sole difference is the name, not the abilities nor job history. However, if that person walks into the interview, he/she may be discounted because of age, having nothing to do with the job. This is a cloaked discrimination no one will ever be able to prove. In the end, the company hires someone younger, with fewer skills and lesser abilities, because merit doesn’t count in the process. The company cares less about who can do the job best, while considering age as a bigger priority.

We can all see these cloaked forms of discrimination….taller men tend to do “better” than shorter men. Prettier women do better than women who are less pretty. Thin people do better than fat people. The list goes on, and “better” refers to college admissions, jobs, social life…it’s all pretty sad.

Discrimination is a terrible thing, dating back to things like “No Irish Need Apply”. Back to when legitimate groups were denied access: think “separate but equal” water fountains, restricted clubs, and everything else codified. We need laws to protect against those horrors.

But we also need a sea change in how we EACH AND EVERY ONE see other people. We need to care more about character and ability. We need to do this when we admit students, hire people, grant leases, etc. And until we do, we need legal means to make the haters fall into line.

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One thought on “Discrimination and Affirmative Action: SCOTUS Takes Another Case

  1. ollie nanyes

    I think that I can say more about UT given that my daughter applied there a couple of years ago:

    Not all high schools are created equal. Because of this 10 percent rule, UT is now admitting many who are underprepared for college; hence UT now offers remedial coursework.

    But sadly this 10 percent rule means that people who finish out of the top 10 percent at stronger high schools are at a disadvantage in getting into UT Austin. BUT if someone really wants to go to UT Austin and they have the grades and college entrance exams, they are made the following offer: go to one of UT’s other campuses for 1 year. IF they maintain a 3.2 GPA for (30 hours?) they are guaranteed admission into UT Austin as a sophomore.

    I can see why some would resent this, but given that UT’s previous efforts to take race into account were shot down, I can see why they tried this.

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