Today, the Supreme Court heard oral arguments in Fisher v University of Texas (pdf link). Although a surprise decision is always possible, it appears likely that the conservative majority will use this case to ban race-based affirmative action in college admissions. (As you’d expect, ScotusBlog has an excellent summary “in plain English” of the case and of today’s oral arguments.)
[Fisher] also was denied admission to the summer program, which offered provisional admission to some applicants who were denied admission to the fall class, subject to completing certain academic requirements over the summer. … Although one African-American and four Hispanic applicants with lower combined AI/PAI scores than petitioner’s were offered admission to the 16 summer program, so were 42 Caucasian applicants with combined AI/PAI scores identical to or lower than petitioner’s. In addition, 168 African-American and Hispanic applicants in this pool who had combined AI/PAI scores identical to or higher than petitioner’s were denied admission to the summer program.
I doubt if Amy Fisher is worried about those 42 Caucasian applicants who got in because we are more likely to think they somehow deserved it. And what of the 168 students of color with scores identical or higher to hers who were denied admission? How is that explained?
No, it’s only an issue when a person of color is perceived to have gained something that rightfully should have gone to a white person. It is rooted in the belief that somewhere out there, there has to be a white person who is better qualified or more deserving or who “merits” more.
Since it seems very unlikely that Ms. Fisher was directly harmed by the University of Texas’ policies (since she wouldn’t have been admitted regardless), the conservative Justices seem to be leaning towards the idea that she suffered “expressive harm.” What is “expressive harm”? Joey Fishkin explains:
…Fisher’s injury is essentially that she had to suffer the indignity of participating in a state-sponsored admissions process that considered race at all. On this second view, even an entirely unqualified white candidate, miles short of the admissions standards, would be just as injured as Fisher even though there is no circumstance under which he would ever have been admitted to UT. […]
What if the admissions committee was impressed with a black student from a racially mixed school who wrote a compelling essay about personally experiencing a racist incident. Is it an expressive harm if an admissions officer finds that essay significantly more compelling than a couple of other essays, by white students—even though all the essays were written equally well—on the grounds that the particular racial context in which this black applicant lives presented some significant challenges, over and above the challenges that might be discernible from looking at the parent income figure on his application for financial aid? Or what about a promising Latino student from the Rio Grande Valley who won a scholarship to a private boarding school in Dallas, who writes a compelling essay about her desire to become a doctor and practice in the Valley, where she sees a lack of needed medical services that she attributes to structural racial discrimination? Is it an expressive harm to Fisher if an admissions counselor finds that one more compelling than the essay of another student who also wants to become a doctor?
At some point, if you push the needle far enough, it starts to sound as though the expressive harm to white applicants (taxpayers? voters?) might begin when admissions officers acknowledge in any way, while reading applications, that we do not live in a paradise of racial integration and equality, but in a society where race matters.
It’s always fascinating to me that when some white students get rejected from a school they immediately jump to the conclusion that a racial minority is responsible. They never file lawsuits claiming that they were denied admission because of a legacy applicant, or an athlete, or because of the financial ability of a wealthy student to pay, or because of the school’s desire to seek out geographical diversity. They never complain about wealthy families spending $30,000 a year on college admission consultants to boost their children’s application strength, or the higher test scores wealthy people receive because they can afford to spend thousands of dollars on SAT test preparation. No, when a white student doesn’t make the cut, she thinks it’s because of her race.
Doctor Cleveland provides a detailed description of how U of T’s admission system works, and writes:
If this is the best and clearest case that the anti-affirmative action people can come up with, why am I the one who’s exaggerating?
People always talk about affirmative action as if clearly qualified white kids were routinely being passed over for badly underqualified black kids. People talk about this as if it were an established fact. But somehow those unquestionably, no-doubt-about-it applicants never turn up in these lawsuits. It’s always a white applicant who would probably or definitely have been rejected even if things had been race blind.
Allen Bakke would not have gotten into UC Davis Med School on his qualifications. Barbara Grutter would not get into University of Michigan Law School on her qualifications. And Abigail Fisher would not have gotten into Texas at Austin on the merits.
Doctor C’s post is very harsh on Abigail Fisher, and I’m not sure how I feel about that. She’s very young – 22 now, but I presume she was a teenager when this lawsuit was initiated – and I think there’s good reason to have more patience with young people who exhibit poor judgement and are blind to their own privileges. On the other hand, maybe that sort of attitude is itself condescending; Fisher is an adult and chose to bring a case before the Supreme Court, after all.
And one final point, again from Joey Fishkin, about the likely effects if the Supreme Court rules against U of T:
At this point, it seems to me that there is no way this Court or any court can actually eliminate the use of race from college admissions. They can try. New anti-affirmative-action decisions may move the demarcation lines that tell colleges where and how to use race in admissions. But such decisions will not cause admissions officers to become truly blind to race, unless they require colleges to stop engaging in subjective efforts to build diverse and vibrant classes, and instead demand some mechanical metric of grades and test scores. There is no constitutional reason to require such an outcome, and at any rate, elite colleges would never accept it. Still, victories for anti-affirmative-action plaintiffs might have a number of important effects: reducing somewhat the overall level of racial diversity on campuses; encouraging holistic review processes that further submerge the use of race; encouraging the further use of facially race-neutral policies carefully calibrated to achieve racial diversity; and encouraging schools to shift more of the burden to applicants to think and write about race in the admissions process themselves (as in “tell us how you would contribute to the diversity of our school” or “tell us about obstacles you have overcome”).