The most conservative Supreme Court in the past four decades is poised to overturn the already limited affirmative action provisions in the next term, which begins in October, unless good sense visits one or two of them and they vote in favor of student body diversity. Since Bush-appointed justices John Robert and Samuel Alito have joined the court, the court has voiced hostility to government uses of race.
The case, Fisher v. University of Texas, was brought by Abigail Noel Fisher, a White woman student who did not qualify for the Texas Top Ten Percent plan, which automatically admits the top 10 percent of every high school class in Texas to the University of Texas. Despite this, Fisher contends that she was denied Fourteen Amendment protection and was discriminated against because of her race.
Her reasoning? Though more than 80 percent of UT students are admitted under the Top Ten Percent Plan, others are admitted based on talent, leadership qualities and family circumstances as well as race. This seems to meet the Grutter v. Bollinger standard that race may be one, but not the only, factor in determining college admissions.
However, Abigail Fisher is one of a long line of mediocre White students who might or might not have been admitted to UT, regardless of race. The student, who seems unable to accept her own academic shortcoming, is blaming the fact that she didn't get into UT on African American students, instead of blaming it on herself.
Fisher was hardly disadvantaged by the fact that she didn't get into UT. She was scheduled to graduate from Louisiana State University this year. Lower courts have found in favor of the University of Texas, though the Firth Circuit decision not to review the case was decided narrowly, at 9-7. With two reversals, one would have thought that the lawyers at Wiley Rein would have given up. But with a conservative, race-hostile Supreme Court, these folks were able to convince the court to review this case.
Understand that this isn't a case the Supremes had to take. They could have taken a pass and decided to let the lower courts speak. But they didn't, leaving one to think that there is an agenda to dismantle affirmative action.
While many organizations, on both sides of the table have filed amicus or friend of the court briefs, I am concerned that the Fisher case is generating much less publicity than either the University of Michigan cases or 35- year old Bakke decision. One might argue that things have changed so significantly that communities of color do not find affirmative action necessary, or that we are so used to being attacked that we will not fight back. But the data make it clear that there are still major gaps in college completion between African Americans, Latinos and Whites. While 29 percent of the U.S. population older than 25 has a college degree, the number for African Americans is 14 percent. It is 8 percent for Latinos.
Policymakers are remarkably short sighted when it comes to affirmative action. By 2040, our nation will be majority minority, and our nation's economic survival will depend on this population being well-educated and able to provide the services our nation will need. We need more Black and Brown physicians, nurses, computer programmers, professors, and so many others. We won't have them unless we educate them.
Our method of delivery educational services has not improved in 40 years. We have not taken demographic differences into account when we look at education. Some say we should base college admissions solely on merit, but when has that ever happened? We give preference in admissions to legacy students, those whose parents attended the same college. We admit athletes simply because they can play sports. With women representing more than 55 percent of our nation's undergraduates, I've actually attended meetings about affirmative action for men (and that probably means White men since the number of African American men attending college has declined).
The Fisher case makes no sense, but silence around it makes no sense either. Last time there was an attack on affirmative action, lots of Fortune 500 companies, colleges, civil rights organizations, and even the United States Army weighed in. Amicus briefs must be submitted to the Supreme Court by August 6 in order to be considered. Time is running out and too many are fiddling while affirmative action is being dismantled.
Julianne Malveaux is a Washington, D.C.-based economist and writer. She is President Emerita of Bennett College for Women in Greensboro, N.C.