Fisher vs University of Texas and How Affirmative Action Has Failed Millennial Minorities

Universities across the nation may be forced to look elsewhere if they hope to maintain a racially diverse student population. The Supreme Court revisited affirmative action last week in the case of Fisher vs. University of Texas at Austin, and if the ruling goes as predicted, we may finally see the end of race-based affirmative action. 

As a UT alumnus and a minority, I couldn't be happier. 

I graduated from college two years ago, so memories of the 40 Acres campus and its diversity (or lack of it) remain pretty fresh. Like many students, I recall coming to college and absorbing the magnitude of its racial self-segregation. This was most prevalent within the Greek organizations: whites, blacks, Asians, and Latinos banding together in their respective racial cohorts, distinguished by their cultural and sartorial sameness. The uniformity reached into the classroom, too. In my philosophy and humanities classes, I rarely saw the racial diversity UT strived so hard to cultivate. I had fewer minority friends in college than I ever had before or after those four years, and based on conversations with others, I'm not the only one. 

So is UT's affirmative action policy working, and more importantly, is it worth preserving? 

UT uses two methods to increase diversity within the student population. The first is what's known as the Top Ten Percent rule. This 1997 Texas provision guarantees admission into any public university for students that graduate in the top ten percent of their high school class. (The rule has since changed to the top eight percent but this change occurred after the plaintiff, Abbie Fisher, initiated her lawsuit). Students that attend UT through this provision currently make up 75% of the student body. 

The provision was devised as a way to maintain minority representation after the Fifth Circuit Court of Appeals in 1996 prohibited Texas universities from using race as an explicit determinant in admissions. The rule enjoys support on both the left and right, and is widely viewed as a model for promoting racial diversity while also remaining race-neutral in its implementation. 

The second method, however, is more controversial, and the one posed to upend admissions at colleges everywhere. To fill out the remaining 25% of the student body — and boost its minority enrollment — the University of Texas employs a “holistic review” that uses multiple factors, including race, to determine acceptance. Almost all universities rely on some version of this qualitative assessment. It allows colleges to factor in race and avoid violating the ban on racial quotas the Supreme Court ruled unconstitutional nine years ago in Grutter vs. Bollinger. However, it also creates an admissions process that lacks transparency, and it's on this basis that critics claim "holistic review" is just another name for racial favoritism. 

Fisher vs. University of Texas at Austin is in part a battle over semantics, and at the center of the quarrel is the definition of "diversity." Almost no one disputes the importance of diversity in higher education, but critics of the policy contend that diversity has simply become shorthand for race. The banner of diversity applies solely to Latinos and African Americans, and it is race — not upbringing, age, experience, or income — that UT looks to reward. Universities, they protest, don’t actually value true diversity otherwise they wouldn’t confine the term solely to skin color. UT seemed to admit as much when it argued that preferences for privileged black and Latino students were in the university's interest because it "increase[s] diversity within diversity." Justice Kennedy neatly summarized UT's position: "You want underprivileged of a certain race and privileged of a certain race."

We may not live in a post-racial society yet, but race-based affirmative action is becoming increasingly hard to defend. In a period of extreme economic polarization, the black suburban middle-class applicant probably has more in common with her white equivalent than she does with the poor, urban black applicant. What's more, under the current admissions regime, the white applicant that grows up in a poor and predominantly black neighborhood would not merit the badge of diversity despite possessing a "minority" perspective. This is a shame, and it exposes the absurdity of using race as a proxy for diversity. As Justice Alito tartly asked during the oral arguments, "I thought the whole purpose of affirmative action was to help students who come from underprivileged backgrounds."  

It once was. During the Civil Rights era, affirmative action was a laudable mechanism for achieving equal opportunity. The rampant institutional discrimination within the labor market and within higher education desperately needed a corrective, and affirmative action proved an effective and timely one. It enabled thousands of African Americans to attend college and join the ranks of the middle class, and we should be proud and grateful of this legacy. 

But times have changed. The gatekeepers of the ivory tower no longer maintain the same formal barriers they once did; women, blacks, Latinos, Jews, and Asians now face those challenges inherent to a meritocratic society, not a racist one. Socio-economic issues present the biggest obstacles for many Americans. A college degree, especially one from a selective university, dramatically impacts one's material future, and for our poorest applicants, holds the key to breaking generational poverty. Given this reality, advocates have failed to present a compelling argument for favoring privileged black or Latino applicants over impoverished applicants of any hue. 

If university administrators want to increase or maintain black and Latino representation in public universities (which I believe is an admirable and important goal) they should abandon this pretense about diversity and look instead towards class-based affirmative action. 

An affirmative action policy that relies on socio-economic status instead of race would disproportionately assist black and Latino applicants while also benefitting those white and Asian students that grew up similarly cash-strapped and disadvantaged. 

Class-based affirmative action policies have been used with great success at UCLA after race-based affirmative action policies in California were banned several years ago, and Texas should look to the Golden State for inspiration. Texas may not solve the problem of self-segregation on campus, but at least it could be certain of supporting its poorest, and most deserving, applicants.

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Joshua Michaels

I'm a TFA Colorado alumnus and currently live in Austin. I studied philosophy in college, and I'm interested in education policy, immigration policy and social theory.

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