Is Affirmative Action at the End of the Road?

by Nubia Willman


On June 23, 2016 the Supreme Court rejected conservative challenge to affirmative action admissions program at University of Texas.

President Obama on the decision: “I’m pleased that the Supreme Court upheld the basic notion that diversity is an important value in our society,” he told reporters at the White House. “We are not a country that guarantees equal outcomes, but we do strive to provide an equal shot to everybody.

The end is near.  That’s what many legal scholars and pundits believe will happen to Affirmative Action after the Supreme Court agreed to review Fisher v. Texas for the second time. The question SCOTUS is determining is whether colleges can consider race as a factor in admissions. In 2013, SCOTUS heard Fisher v. Texas for the first time and remanded the case back to the appellate court. The lower court then once again ruled against Abigail Fisher, the plaintiff.  Fisher is represented by Project for Fair Representation, a one-man shop obsessed with dismantling Affirmative Action and bankrolled by DonorsTrust, an organization that backs conservative causes. The case is due to be heard this fall but may not be decided until next year. 

For SCOTUS to grant review of a case that was so recently decided means that they might well decide whether Affirmative Action is unconstitutional or not. There is hope that they may rule narrowly so that it only applies to this case, but proponents of Affirmative Action aren’t holding their breath.  Aside from the conservative judges on the Court (who consistently vote against Affirmative Action), Justice Kagan will recuse herself because of the previous work she did on this case; and Justice Kennedy, often a swing vote on supposed “liberal” issues, has previously come down hard on race and has not been supportive of Affirmative Action in the past. But this court has been unpredictable, as when it upheld Obamacare.

Before discussing what is at stake for Latinos, it is important to understand the principles of Affirmative Action. It is not a quota system (those are unconstitutional); or a push to select less-qualified candidates in lieu of more qualified ones; or a mandate to lower admission standards. The original mission of Affirmative Action was to recognize that certain groups of people have experienced marginalization and have had access to educational opportunities purposefully limited. Affirmative Action encourages institutions of power to seek out minorities in order to increase access to higher education in those communities.

But, like anything that seems to favor Latinos and other people of color, those in power immediately start to complain about reverse racism or show false concern over an alleged lowering of standards. But it is interesting to note that prior to Affirmative Action, people in power never questioned when a white man, less qualified than a minority candidate, was selected because of his race or gender

So let’s talk about fairness and parity through a feminist lens.  The story is that Abigail Fisher  was a hard-working student with dreams of obtaining admittance at University of Texas-Austin (UT), and those dreams were dashed when UT selected minorities over her. What we’re supposed to elicit from this is that the poor girl worked hard, did what she was supposed to do, and then some lazy, less-intelligent person of color took her place. She seems to believe that she deserved to be at UT because of her whiteness.

Some might write her off as a young woman being used as a pawn in a bigger conservative movement, but Abigail is grown and college-educated; she survived UT’s rejection and went on to attend Louisiana State University. Since then, she has had ample opportunity to learn from her mistake and acknowledge the damage her case is set to cause. Instead, she’s still promoting her incorrect belief that UT discriminated against her (confirming this in a statement issued this past spring).

The facts, however, are different--Abigail was a good student, but not better than average. She failed to make the top 10% of her graduating class, which would have guaranteed her a spot in UT. She claims students of color that did worse than her were accepted. Yet, of the 47 accepted students who had worse scores than Abigail, 42 were white. Never mind that over 100 minorities with better or equal scores were also denied admission. What matters to opponents of Affirmative Action is that a person of color maybe, possibly, perhaps received a benefit over a white woman.

Here comes the irony: Affirmative Action works and statistics show that it really, especially works for white women. Since it began, there has been a steady increase of women represented in higher education and in professional fields that once seemed out of reach. Affirmative Action had a large role in that increased representation, and should be a program that white women should embrace and protect because they do so well by it.  

Instead, Abigail Fisher and her lot are quick to believe that a program that benefits people of color must, by its nature, take something away from them. They work in tandem with oppressors for fear that one of us may get one up on them. This is a prime illustration of why feminism must be intersectional. Feminists must acknowledge the varieties of oppression that different groups of women encounter and vocally support programs that help minorities--even when they don’t see how it directly benefits them; otherwise one faction of women will continue to progress, while the rest of us are left out in the cold.

Unfortunately, many like Abigail have gained as much as they could from Affirmative Action and now that they feel secure, not only turn their back on other oppressed groups, but demand (litigate!) an end to the policy. If this isn’t an example of “forget you, I got mine,” I don’t know what is.

Abigails's case is shameless, ignorant, and harmful. The misguided fight for so-called justice is threatening to dismantle a program that has benefited Latinos and blacks who already struggle mightily to access higher education. States that have banned Affirmative Action saw a precipitous drop in enrollment of minority students that took years to rebuild. Latinos are enrolling in two-year colleges more than other groups, but the path to a four-year university will be long and hard if these universities don’t feel pressure to increase diversity and minority representation.

It’s a sad reality that we may be at the end of Affirmative Action in higher Ed, and the Abigails of the world may never recognize that their actions are harmful, racist, and deeply-seeded in entitlement; but we can push back against these behaviors. Latinos who have successfully accessed college need to make a concerted effort to demand increased diversity at their alma maters as much as possible. On a local and national level, Latinos need to vote and support progressive candidates who promote increased access to education, or run for office themselves. Just as important, feminists must acknowledge the imbalance of power structures between races and ethnicities. Recognizing our different privileges allows for a better understanding and clears the way for a more equal progression.  If we aim to do this, then perhaps next time a white woman is denied something she wants, she won’t automatically blame us.

Resources and links:

Statistics on minority representation for states that banned AA:

Oyez's Fisher V. Texas profiles (Oyez is a site that summarizes cases before the Supreme Court): Profile 1:  

Study on Affirmative Action beneficiaries: