By now, you may have heard of Abigail Fisher, who currently has a case before the US Supreme Court regarding her denied admission to the University of Texas. If judged in her favor, the use of racial preferences in university admissions may well be outlawed.
Fisher’s saga as a litigant began in 2005, when a former stockbroker and failed Republican congressional candidate named [Edward Blum](http://www.reuters.com/article/us-usa-court-casemaker-idUSBRE8B30V220121204#Qg1SUWbJyVgm8hH6.9) (no relation to yours truly) founded the Project on Fair Representation (POFR) in Austin as a nonprofit legal defense fund under Section 501(c)(3) of the Internal Revenue Code. As [its website](https://www.projectonfairrepresentation.org/) declares, POFR’s mission is to end “racial and ethnic classifications and preferences in state and federal courts.” Its work is financed by grants from the Koch brothers-backed Donors Trust group, a shadowy fundraising organization based in Arlington, Va., that Mother Jones magazine dubbed in 2013 the “dark-money ATM of the conservative movement.” Other beneficiaries of Donors Trust grants, according to Mother Jones, have included the Heritage Foundation, Grover Norquist’s Americans for Tax Reform, the NRA, the Cato Institute, the American Enterprise Institute and The Federalist Society. One of Blum’s first targets as POFR’s director was his alma mater—the University of Texas and its flagship Austin campus, where he graduated in 1973. Blum objected to the university’s 2004 move to reinstate a race-conscious affirmative action program for undergraduate admissions. An earlier affirmative action program had been disbanded as a result of a federal circuit court ruling—[Hopwood v. Texas](http://www.ca5.uscourts.gov/opinions%5Cpub%5C94/94-50569.CV0.wpd.pdf)—that held that the consideration of race in college admissions violated the equal protection rights of white applicants. But UT administrators were encouraged to act by a 2003 Supreme Court decision—[Grutter v. Bollinger](https://www.law.cornell.edu/supct/html/02-241.ZO.html)—that had approved the University of Michigan Law School’s affirmative action program. The Michigan system avoided the numerical quotas that the court had disapproved back in 1978 in . But it permitted admissions officers to take race, among myriad other criteria, into account in assessing applicants for the purpose of achieving a diverse student body. The new Texas program, which has been slightly modified since its inception but continues to operate pending Supreme Court action, became known as the Ten Percent Plan (TTP). Under it, Texas high school students who graduate in the top 10 percent of their classes are guaranteed admission to the university. Applicants who fail to make the cut are evaluated under a second-tier “holistic” index that not only considers academic records and test scores but also a student’s extracurricular activities, personal achievements, socio-economic background, family circumstances, native language and race, among other criteria. Currently, UT [is required](http://web.archive.org/web/20160124181148/http://catalog.utexas.edu:80/general-information/admission/undergraduate-admission/freshman-admission/) to fill 75 percent of the spaces available in each entering freshman class with in-state 10-percent applicants. With another 10 percent of spaces reserved for out-of-state and international students, competition for the remaining in-state slots among non-10-percent residents is fierce. Determined to derail the UT’s use of race as violative of the 14th Amendment, Blum set out in 2005 to locate a good plaintiff to champion a lawsuit.
In 2008, he found his champion: Abigail Fisher. Academically, her record was respectable but not remarkable. Denied entry into the competitive University of Texas system, she sued. Her case reached the Supreme Court once before, but was kicked down to a lower court for further review.
It is unclear at this point how the Court will rule. Justice Scalia’s comments during oral arguments have been both racist and embarrassing. Chief Justice Roberts, who has spent his career undermining civil rights laws, has been careful not to show his hand, but is likely to vote against the University.
It must be said that affirmative action–that is, demographically-based measures that advantage women and racial minorities in order to help address systemic disadvantages–has overwhelmingly helped white women. Forbidding the use of race as part of overall admission criteria means that white women will benefit even more, essentially throwing people of color under the bus for the sake of upholding white privilege.
Privilege is at the heart of this, too. It has been my personal observation that a key characteristic of privilege is an unwillingness to take “no” for an answer. Male privilege commonly manifests as straight men being unwilling to accept “no” from women, be it in asking a woman for a date, seeking consent for sex, or even just respecting a woman’s wishes for personal space and consideration. On top of that, ignoring the “no,” for a privileged individual, rarely carries serious consequences. Men don’t typically face repercussions for ignoring women’s wishes. White people fret over whether we’re allowed to use the N-word, and yet there are plenty of contexts in which we may use it freely, without fear of negative effects, even though it’s something we should know better than to do.
In this instance, Ms. Fisher was told “no” by the University of Texas, and refused to take it for an answer. She has obtained a degree from Louisiana State University–a similarly prestigious system–but that’s not good enough. She and Blum’s organization are convinced that she didn’t get into UT because a person of color was allowed in instead of her. She has no proof of this–she doesn’t need it. She only needs a majority of the Court to agree with her argument that racial preferences are not tailored narrowly enough to pass Constitutional muster, which is a highly subjective judgment call that will be decided on the basis of ideology above all else.
I don’t know Abigail Fisher, but regardless of the outcome, I hope someday she is able to look back on this episode and realize how selfish and damaging her crusade has been. I moreover hope that the end result here doesn’t cause further injustices against people of color, though it stands a good chance of doing so.
If I could offer any advice at all with regard to examining one’s privilege, it would be this: do learn to take “no” for an answer.
Photo by Phil Roeder 