Fisher v. Texas: Do Colleges Still Need to Use Affirmative Action?

Although the topic of affirmative action isn't really being brought up in presidential debates, the Supreme Court has decided to take on the case of Fisher v. University of Texas. The plaintiff, Abigail Fisher, applied to the University of Texas-Austin back in 2008 and was denied entry to the university. The lawsuit is based on the plaintiff's allegation that due to the university's usage of race as a factor in admissions, the University discriminated against Fisher because she is white. The importance of this case is determining whether the consideration of race as a factor in college admissions through Texas' Top 10% Rule is a violation of the Fourteenth Amendment's Equal Protection Clause, which could very well mean the beginning of the end of affirmative action in this country.

The last time the Supreme Court heard cases on the issue of affirmative action in college admissions was back in 2003: Gratz v. Bollinger and Grutter v. Bollinger. In the former case, using a pre-determined point system that gave minorities an advantage was ruled 6-3 as unconstitutional. In the latter case, the Court ruled that a race-conscious admissions process that ensured a "critical mass" of minority groups that were unrepresented was constitutional. If Fisher wins, it will mean either asking the University of Texas to implement an admissions process consistent with the narrower reading of "critical mass" given in Grutter v. Bollinger, or it could very well mean the reversal of Grutter v. Bollinger. Justice Kagan recused herself from the case, so my educated guess in terms of the verdict is that it will be up to Justice Kennedy, although who knows if Justice Roberts pulls off another stunt like he did with Obamacare.

What I would like to do now is determine the necessity of affirmative action in college admissions. This will not be a question of whether affirmative action's initial implementation in the Johnson administration was justifiable or necessary because that's a different topic. The question I want to propose is this: In the year 2012, is it still necessary for colleges in the United States to consider race as a factor in college admissions?

One of the most common arguments is to diversify the student body. Being surrounded by people with diverse backgrounds exposes students to different ideas and experiences, thus broadening their horizons and minds. As such, racial preferences in college admissions is a way to achieve that goal. I have a problem with assuming that an externality such as race is a sure-fire guarantee for diversity because it's not. If we honestly care about diversity, the sort of diversity that colleges should care about is that of opinions, beliefs, and experiences, all of which can be accomplished without looking at race or ethnicity. Second, while I appreciate the benefits of diversity, diversity for diversity's sake is morally awry, especially with higher-skilled professions. Which do you think is more important: that the school from which my heart surgeon was racially diverse or that if I ever needed a double bypass surgery, (s)he is a competent surgeon that can competently perform the task? I don't know about you, but I'd go with the latter.

The third issue, and quite frankly, the most important issue I have with the diversity argument, is how colleges go about categorizing race. By federal law, a college is required to add the optional question about race and ethnicity on college applications. There are seven categories: Hispanic/Latino, American Indian or Alaska Native, Asian, Black or African-American, Native Hawaiian or Pacific Islander, White, or two or more races. In terms of the "diversity argument," we have three problems. The first problem is if you are not part of what is considered an "unrepresented minority" (e.g., you're White or Asian). If you don't mark something, they'll assume you don't need consideration. If you do, they will either use it against you or not give you preferential treatment. This is a classic example of a Catch-22.  The second problem is with the sweeping generalizations of the groupings themselves. Let's take the "Asian" label. Asia's a big place, and there are many nationalities and ethnicities in Asia. Chinese people are not Japanese, and Japanese people are not Indian, and Indian people are not Thai. The same can be said for the Hispanic community. Being Mexican is not the same as being Chilean, and it's not the same thing as being Puerto Rican. Third, not only have potential students been lumped together in very broad racial terms, but looking at race/ethnicity as an admissions factor also implies that they think and act in the same way. If assuming the heterogeneity of a certain ethnic or racial group isn't racist, I don't know what is.

Another common argument for using race as a factor is to help give "unrepresented minorities" (e.g., African-Americans and Hispanics since they are the biggest recipients of such consideration) a boost in succeeding in the world because without such consideration, institutional barriers will keep getting in the way. As a Jew, I keep American Jewish history in mind and recall that up until a few decades ago, Jews had to deal with a number of institutional barriers, both in the workplace and in college admissions. Many Jews had to hide their Jewishness (e.g., change their last names, discard Jewish practices) in order to succeed. American immigrants from Asian countries such as China, Japan, Korea, and India also have had to deal with discrimination. Even Catholics were once a persecuted minority in this country. With hard work and perseverance, these minority groups fought the uphill battle and have aggregately done better as a result. The issue with affirmative action is that it created what President Bush rightfully called the soft bigotry of low expectations. Affirmative action has the real potential to compromise the accomplishments of minority students by putting into question whether they matriculated because of their accomplishments or their race. This is unfortunate because this ambiguity can lead to people assuming the worst of a minority student, and I'm pretty certain that more than one person has felt that way. The attempt to mitigate racism in college admissions comes with this undesirable side effect, which is messed up because people are then accused of the very racism that proponents use to justify these preferences in the first place.

I think the French were right to call affirmative action la discrimination positive (literally meaning "positive discrimination"). Even if completely benign in intent, affirmative action is merely substituting one form of racism for another, and the problem will not go away until race is removed as a consideration for college admissions. Imagine if we expanded this idea beyond the admissions office and tried "affirmative action grading" in the classroom. It'd be extremely unfair, wouldn't you agree?

What's more is that even without considering the possible distortion effects of the mismatch effect, which the Wall Street Journal picked up on recently, there is still the issue of dropout rates. Looking at college stats (you can examine state-by-state, e.g., Wisconsin), African-Americans and Hispanics have higher drop-out rates, thus having lower graduation rates. Higher incidents of dropping out amongst these minority groups is not an issue of being able to get into college in the first place, but rather an issue of receiving an inadequate K-12 education in order that they have a higher graduation rate and succeed in the world. 

If affirmative action should be in college admissions to address poverty issue, I will say that it is lamentable that African-Americans and Hispanics have a higher incident rate of poverty (see Census data), and it's equally lamentable that affirmative action has done nothing in the past 40+ years to really mitigate the fact that a black person or Hispanic is still at least twice as likely to be as poor as a white person (See Table 3 of Census data; data dates back to 1970s). On the other hand, we should also remember that being an individual in poverty, regardless of race, is unfortunate. According to the Census, there are about 31,083,000 white people and about 1,899,000 Asian-Americans who are below the poverty line. If poverty is the reason for preferential treatment in admissions, then we should be addressing the issue of poverty.

Bringing this back full circle, the solutions that will solve this issue will not be in giving preferential treatment based on race when it's time for an individual to apply for college because it's bad policy. Solving the problem will need to happen much earlier in a child's educational development, which is another way of saying "we need fundamental K-12 education reform" to provide as many students with the necessary skills to function and succeed in the marketplace. Whether that ultimately happens, I'm unsure. It'd be fantastic, but again, I don't know. What I do know is that if the Supreme Court rules in favor of Fisher, my hope is not only that we can be one step closer to a color-blind society, but also that we can focus on education policy that could actually be beneficial to all.