College Guide


October 10, 2012 3:36 PM The Texas Affirmative Action Case

By Daniel Luzer

The U.S. Supreme Court today heard arguments in the case of Fisher v. University of Texas at Austin, in which two white women are suing Texas’s flagship university, arguing that the school’s affirmative action program—and therefor their rejection for admission—constitutes a violation of the Equal Protection Clause of the Fourteenth Amendment.

The Supreme Court heard its last a major affirmative action case, Grutter v. Bollinger, in 2003. Justice Sandra Day O’Connor, who wrote the majority opinion (allowing race to be considered in admissions decisions) in that case, said she expected the new policy to last for 25 years. She wasn’t counting on the changing composition of the court.

According to an article By Adam Liptak in the New York Times:

The questioning was exceptionally sharp, but the member of the court who probably holds the decisive vote, Justice Anthony M. Kennedy, tipped his hand only a little, asking a few questions that indicated discomfort with at least some race-conscious admissions programs. He told a lawyer for the University of Texas at Austin, which was challenged over its policies, that he was uncomfortable with its efforts to attract privileged minorities.
“What you’re saying,” Justice Kennedy said, “is what counts is race above all.”

One of the central questions the more liberal judges seemed to have was whether or not Abigail Fisher, the white woman denied admission to the University of Texas, really suffered the sort of wrong that gives her reason to sue at all.

Affirmative action policies, in principle, exist to address past wrongs committed against ethnic minorities. By admitting many students from historically disadvantaged backgrounds, universities can help to improve the situations of the racial groups as a whole. Universities also prefer affirmative action policies because such programs allow them to promote racial diversity on campus, which is theoretically beneficial to learning and the exchange of ideas.

The “address past wrongs” part of affirmative action is more concrete, implying that at some point past wrongs might be fully addressed and the program could end, having completed its mission. The “diversity of viewpoints” part of affirmative action, the part universities particularly like, is more ambiguous. Diversity of viewpoints is always a good thing in higher education, after all; enthusiastic support for that principle means, ultimately, that affirmative action policies might stick around forever.

Fisher seems to bypass these justifications altogether, arguing merely that the entire concept of favoring race in college admissions is unfair. Fisher argues that the mere presence of an admissions policy that rejects her, while admitting ethnic minorities with lower grade point averages and standardized test scores, causes her to “suffer an injury that falls squarely within the language and spirit of the Constitution’s guarantee of equal protection.”

But how grievous an injury is this, really? It’s clear Fisher has standing to sue here at all. It’s not as if her failure to be admitted to UT-Austin consigned her to a life of pain and economic hardship. She recently graduated from Louisiana State University and now works as a financial analyst in Austin, Texas. Has she suffered at all?

Daniel Luzer is the news editor at Governing Magazine and former web editor of the Washington Monthly. Find him on Twitter: @Daniel_Luzer


  • Kent Clark on October 10, 2012 4:14 PM:


    Everybody says there is this RACE problem. Everybody says this RACE problem will be solved when the third world pours into EVERY white country and ONLY into white countries.

    The Netherlands and Belgium are just as crowded as Japan or Taiwan, but nobody says Japan or Taiwan will solve this RACE problem by bringing in millions of third worlders and quote assimilating unquote with them.

    Everybody says the final solution to this RACE problem is for EVERY white country and ONLY white countries to “assimilate,” i.e., intermarry, with all those non-whites.

    What if I said there was this RACE problem and this RACE problem would be solved only if hundreds of millions of non-blacks were brought into EVERY black country and ONLY into black countries?

    How long would it take anyone to realize I’m not talking about a RACE problem. I am talking about the final solution to the BLACK problem?

    And how long would it take any sane black man to notice this and what kind of psycho black man wouldn’t object to this?

    But if I tell that obvious truth about the ongoing program of genocide against my race, the white race, Liberals and respectable conservatives agree that I am a naziwhowantstokillsixmillionjews.

    They say they are anti-racist. What they are is anti-white.

    Anti-racist is a code word for anti-white.

  • c00p on October 10, 2012 8:57 PM:

    Despite efforts to "diversify", there are still far fewer black and Hispanic students at UT than there are in Texas at large.

  • c00p on October 10, 2012 9:01 PM:

    What I meant to say above is that the percentage of minority students at UT is far lower than the percentage of minority students in Texas overall. Obviously there are fewer students at UT than in the whole state!

  • Scamp Dog on October 10, 2012 9:16 PM:


    I spent a year living in Taiwan (in Asia, for the record), and I wasn't the only white guy living there. So, you know, things aren't as bad you're afraid they are. I don't think any of us got killed by the natives, either, so the genocide thing didn't seem to be much of a problem.

  • a caucasian who's passionately anti-racist. on October 10, 2012 9:36 PM:

    Since when does WM permit its comments pages to be defiled by the racist spewings from the troglodytes from StormFront??

  • a caucasian who's passionately anti-racist. on October 10, 2012 9:41 PM:

    In the hopes that an editor will remove that noxious crap - and as an FYI to later readers who may otherwise wonder whom I'm responding to...

    I'm responding to a cut-and-paste screed from a white racist who's been posting the same packet of Mitt-worthy LIES all over the net in response to articles pertaining to this topic.

  • a caucasian who's passionately anti-racist. on October 10, 2012 9:46 PM:

    Scamp Dog..

    I doubt very highly that Kent has ever traveled beyond the borders of his native Idaho, much less possess a passport.

    Frankly, like much of his self-identified "breed", I'd be very surprised if his education extends beyond high school.

  • Daddy Love on October 10, 2012 11:29 PM:

    What's Kent gonna do when even the nice white ladies refuse to breed with him?

  • Equal Opportunity Cynic on October 11, 2012 2:11 AM:

    Universities also prefer affirmative action policies because such programs allow them to promote racial diversity on campus, which is theoretically beneficial to learning and the exchange of ideas.

    You drastically understate the case. It's empirically demonstrated in the higher education literature to be beneficial to learning. This was a key assertion that Michigan made in Grutter that helped them win.

  • Walker on October 11, 2012 9:49 AM:

    I have worked with several admissions departments at competitive universities: as an alumni interviewer at my alma mater, and an application reader at my current university. The way we really achieve diversity is as follows:

    We look at the students background and see whether they made the absolute most of all the possibilities that were available to them, and are above a minimum bar in terms of preparedness.

    As a result, this privileges a inner city student with no APs (because the school had no APs) -- but studied a lot on their own or found a mentor in the community -- over a suburbanite that coasted through a lot of APs but did not do much else. But this means that it also privileges the white kid from the mountains of Applachian over the an afluent surbannite of any race.

    We also give priority to first-gens, as it is a major achievement to make it into a competitive college if none of your parents do.

    And guess what. In many cases that these students do much better than the "super-prepared" students. Because the "super-prepareds" have never really been challenged or confronted failure, and they have a harder time adjusting to college. So we keep doing this.

    Now, it so happens that these preferences do end up having a racial component, because that is how a lot of class lines are drawn in this country.