Affirmative Action—Revisited by the Supreme Court

Happy MLK Day! This year, I continue my annual tradition of writing about issues of race and diversity with a preview of the Supreme Court’s decision in Fisher v. University of Texas, which should be decided within the next month or two. The case considers whether UT’s use of race in its admissions process is constitutional.

While reading the transcript of the oral argument, I was struck by how fundamentally different the perspectives of the two sides are. But after reflecting on the dichotomy, I was surprised to realize that the wildly different perspectives are both views that I have personally held at various points in my life. A full understanding of the affirmative action issue (and the Fisher case) requires an understanding of both perspectives.

I was raised in a small town, with an overwhelmingly (96%) white population. When I was in high school, I thought deeply about affirmative action, and viewed it from a fairness perspective. If the purpose of affirmative action, thought I, is to make up for past discrimination, shouldn’t it cease to exist at some point? And why are people of equal financial and educational backgrounds treated differently?

Eventually, I went to college and moved to a large, diverse city. Due to a myriad of conversations and experiences, my perspective changed. I came to think that there is value in diversity in and of itself: that there is value in bringing together a diverse group of perspectives and experiences.

During oral argument in the Fisher case, the Supreme Court addressed these two perspectives at pages 42-45 of the transcript. The attorney for UT, Gregory G. Garre, was explaining the purpose of affirmative action at UT (from a perspective similar to the one I adopted after moving to a large, diverse city) and Justice Alito was asking questions about the constitutionality of UT’s goals (from a perspective similar to the one I held when I lived in a small, white town).

Mr. Garre was explaining that the purpose of the use of race in UT’s admissions process is to create an incoming class that reflects a diverse array of viewpoints and experiences. The purpose is not necessarily to make up for past discrimination, but to enhance the educational experience of all students by making sure no students feel as though they are spokespersons for their race and that the classroom is a place full of varying perspectives and ideas.

Justice Alito pointed out that Texas’s 10% rule provides a reasonably significant amount of diversity at UT and wondered why UT feels affirmative action is necessary in addition to that rule. The 10% rule is a state law that guarantees admission to UT for any student graduating in the top 10% of his or her high school class. Because many high schools in Texas are segregated along racial and economic lines, the law greatly increases racial diversity at UT.

Mr. Garre answered Justice Alito’s question by explaining that while the 10% rule does increase racial diversity at UT, its effect on educational benefits is limited. Mr. Garre explained that the minority students who gain admission as a result of the 10% rule often come from underprivileged families and attended less than prestigious high schools. Mr. Garre argued that the educational value of a diverse student body was not fully achieved by the 10% rule. To illustrate the point, Mr. Garre provided the example of an African American student from a privileged family. This student might attend a prestigious high school, graduate outside of the top ten percent, but be of great value to the UT student body because he could bring a perspective that is underrepresented: that of an African American student from a privileged background and a prestigious high school.

Justice Alito balked at this example. He could not square it with his belief that “the whole purpose of affirmative action [is] to help students who come from underprivileged backgrounds.” Justice Alito’s confusion makes sense. If the whole purpose of affirmative action is to help students from underprivileged backgrounds, UT’s use of race in its admissions process is probably unnecessary and unconstitutional.

But, having viewed this issue from both perspectives, I would have to conclude that Mr. Garre’s view is the more valid one. Fairness is not the primary purpose of affirmative action in university admissions. A higher quality educational experience for all, brought on by the value of a variety of experiences and ideas on campus, is the primary goal of the use of affirmative action in the admissions process. Fairness is more of a justification. It is reasonable for universities to consider race because it is necessary to make up for the overt racism of the not-so-distant past.

None of this is to say that UT will or should prevail in the Fisher case. It is impossible to know, but my best guess is that the Court will hold that the UT admissions program is unconstitutional. But the point I wish to make is that the debate over affirmative action will go nowhere if people on the two sides misunderstand the paradigm from which the opposite side views the issue.

If there is one thing we should all do on MLK Day, it is to try to view the world from someone else’s perspective.

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This entry was posted in diversity, law, supreme court and tagged , , , , . Bookmark the permalink.

4 Responses to Affirmative Action—Revisited by the Supreme Court

  1. JAS says:

    Great post!

  2. villagebear says:

  3. Pingback: Will the Supreme Court Support Same-Sex Marriage? | more than twenty cents

  4. Pingback: The Supreme Court’s Michigan Affirmative Action Decision: Part III of our Coffee House Conversation | more than twenty cents

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