One Girl’s Fight to Become Orange

The discussion of race is an uncomfortable one. Americans tend to believe that we are a progressive nation of justice seeking individuals who stand on the mantra that all men are created equal. So when the Supreme Court has to decide on tough cases like Fisher vs. University of Texas, it makes for uneasy and emotion-filled conversations among most Americans.

Enter Abigail Noel Fisher. A Texas native hailing from suburbia America, Fisher is the product of UT alumni as both her sister and father were graduates of the state university. In high school she played soccer and the cello, was involved in many extracurricular activities, an A/B student and scored modestly well on her SAT exams. She applied to the University of Texas at Austin in assurance that she would be admitted into the Fall of 2008 freshman class. She was denied.

However as some of her peers began to receive their acceptance letters, Fisher was alarmed. She states, “There were people in my class with lower grades who weren’t in all the activities I was in, who were being accepted into UT, and the only other difference between us was the color of our skin.”

Fisher subsequently sued the University, arguing that she was deprived of her Fourteenth Amendment right to “equal protection” under the belief that she was denied admittance to the University in favor of minority students who were accepted with lesser credentials. “I was taught from the time I was a little girl that any kind of discrimination was wrong. And for an institution of higher learning to act this way makes no sense to me. What kind of example does it set for others?”

And thus, the litigation began.

UT presented the following facts to explain and defend their enrollment strategy:

  • As a state university, UT submits to the state of Texas’ Top 10 Law, which guarantees admission to any student who graduates from a Texas high school within the top 10% of his or her High School graduating class. 91% of the university’s freshman in-state spots were taken by Top 10 graduates. Fisher did not fall within this group
  • The university uses a “holistic” admissions process for all other UT applicants and evaluates candidates based on a culmination of two scores. The first is the AI score which allots points for GPA and SAT scores. The second is termed the personal achievement index, or PAI. The PAI score awards points for two required essays, community service, leadership, activities and “special circumstances” which includes social factors such as whether the student hails from a single parent household, the socioeconomic status of the student or their home school… and yes, race.
  • The university asserts that “due to stiff completion and the petitioner’s relatively low AI score – petitioner would not have been admitted to the fall 2008 freshmen class even if she had received a ‘perfect’ PAI score.” In other words, even if Fisher had written perfect essays, had the perfect extracurricular rap sheet, been black, poor, a first generation college-goer and received points for ALL of those things, her grades were simply not competitive enough to give her a cumulative score that would have allowed her to be accepted. (According to ProPublica, the school’s rejection rate in 2008 was higher than the turn-down rate for students trying to get into Harvard that year.)
  • Fisher also applied (and was rejected) to UT’s summer program, a program that offers provisional admission to some students who were denied in the fall. UT admits to offering spots to this program to students who either had equal or lower combined AI/PAI scores. One was African-American. Four were Hispanic. Forty-Two were Caucasian. In addition, 168 African-American and Hispanic students with combined AI/PAI scores higher than Fisher’s were denied admission to the summer program.
  • Most importantly, the University states that it must be free to build a diverse student body to achieve a competitive advantage and effectively build leaders and eliminating affirmative action would hinder their ability to ensure there is a “critical mass” of minority students represented in classrooms.

So basically, as a fellow Texan colloquially put it, Fisher was simply not “UT ready” during one of the university’s most competitive years. UT’s rating system is more complex than simply checking the “yes” box for students of color. Caucasian students were higher represented in the total pocket of those students who received provisional admission into the university.

Fisher’s Team did not respond to the argument that Fisher’s grades weren’t competitive enough but presented the following rebuttal:

  • UT fails to demonstrate the necessity of using racial preference in the admissions process to achieve diversity. UT has no evidence that they would not be able to achieve racial diversity if they simply used a combination of the Top Ten law and a race-neutral AI/PAI evaluation system.
  • UT does not show how their use of race in the admissions process is “narrowly tailored”: legal jargon that means the remedy must specifically address the problem and only the problem (ie: if the need is to grow 5%, the remedy must specifically be tailored to that end goal and not be so loosely applied that it ends up adding, for example, 10% or hindering another section).  
  • UT has not shown how ensuring “classroom diversity” is a compelling state interest.
  • UT’s racial preferences have not only failed in making real progress towards diversity but in fact are discriminatory towards another minority group, Asian-Americans.
  • UT has received accolades as one of the Nation’s “top producers of undergraduates for Hispanics” and thus cannot firmly stand on their assertion that Hispanics are a underrepresented minority group within their classrooms.
  • The Grutter Case, a previous case that centered on affirmative action and allowed universities to intentionally enroll underrepresented minority groups, should be clarified or overruled to ensure that it is not misunderstood. UT has taken the case and overextended its language due to lack of clarity and that the case should never be read to be incompatible with the Fourteenth Amendment.  Also, UT’s position that Grutter’s case should not be overturned because it is a “sensitive political” issue is signs that UT is using racial preferences as a “chip in the political process.”

To summarize, the Fourteenth Amendment should not be violated under any circumstances. UT is using a broad, heavy handed, discriminatory system that they have not proven to be superior to a race-neutral one. UT already is succeeding in graduating Hispanic students (to the exclusion of Asian-American students) and therefore double talk when they defend their practice.

Based on the arguments from the Fisher camp as well as the facts presented by UT, it is obvious that the case itself has little to do with Fisher (she has since graduated from the University of Louisiana and currently works as a financial advisor in Austin). In fact, her name is mentioned by her lawyers all of 5 or 6 times in the legal rebuttal. She was simply a face for an agenda.  This case is actually questioning if a university (specifically the University of Texas) has the legal right to include race as a deciding factor in admissions. Blum (the man paying for the case) states that these types of practices, “unjustly punishes (whites) for long-abandoned racist practices.”

It is also interesting to note: 1) Fisher did not seek Blum’s representation… he found her. According to a Reuters article, Blum sought Fisher (and another young lady who has since pulled out of the case) out, convinced her to sue and secured both legal and financial support for the case. 2) The demographics of the 2008 incoming class was: 19% Asian-American, 20% Hispanic American, 6% African American and 52% Caucasian. 3) Blum admits that there is no way to tell whether or not Fisher’s race had anything to do with her rejection. “An argument can be made that it is simply impossible to tease out down to the last student who would have been admitted, and who would have not been admitted, had they been a different skin color,” Blum said. “What we know is skin color is weighed and ethnicity is weighed by the University of Texas in their admissions process, and that alone is enough to strike down the plan.” 4) This is the most conservative Supreme Court bench since the 1930s. Four of the six most conservative judges since 1937 now serve as Court judges.

On June 24, 2013 the Supreme Court ruled, supporting the idea that Affirmative Action should be upheld, but must be strictly reviewed. They sent the case back to the lower court stating that they had not scrutinized and confirmed that the use of race in admissions is absolutely “necessary” in creating a diverse student body.

U.S. Secretary of Education Arne Duncan issued the following statement in reaction to the Supreme Court’s ruling on Fisher vs. University of Texas at Austin:

“I am pleased that the Supreme Court ruling in the Fisher case today preserves the well-established legal principle that colleges and universities have a compelling interest in achieving the educational benefits that flow from a racially and ethnically diverse student body, and can lawfully pursue that interest in their admissions programs. As the Court has repeatedly recognized, a diverse student enrollment promotes cross-racial understanding and dialogue, reduces racial isolation, and helps to break down stereotypes. This is critical for the future of our country because racially diverse educational environments help to prepare students to succeed in an increasingly diverse workforce and society.

“The Department continues to be a strong supporter of diversity, and will continue to be a resource to any college or university that seeks assistance in pursuing diversity in a lawful manner.”

Michelle Williams is currently interning with the White House Initiative on Educational Excellence for African-Americans. She is an Educational Studies student at Western Governor’s University-Texas.

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