UVA BLSA Issues Statement on Fisher v. Texas Supreme Court Case

Diversity is Not a Dirty Word
The University of Virginia Black Law Students Association

On Wednesday, October 10, 2012 the Supreme Court of the United States will hear Oral Arguments for the high-profile case Fisher v. University of Texas.  In Fisher, the Court will decide whether it is constitutional for the admissions program at the University of Texas at Austin (UT) to consider race as one factor, among many, in its attempt to create a diverse educational experience for its students.  Though the term “affirmative action” has been heavily politicized, most will not deny the benefits that institutions of higher education receive from a racially diverse study body. No matter what we call the method used to achieve it; diversity should not be seen as a negative aspiration.

If you have not heard about Fisher v. University of Texas the facts of the case may surprise you.  The case began in 2008 when Abigail Fisher, a white woman, sued (UT) because she was rejected from the school's undergraduate program. As a resident of Texas, Fisher would have automatically been accepted to the UT if she had graduated in the top ten percent of her high school class, but she did not. UT’s “Top Ten Percent Plan” fills eighty-five percent of the available slots in its entering freshman class, leaving Fisher in competition with thousands of national applicants for the remaining fifteen percent of slots.  

When determining the final fifteen percent of an entering class, UT uses a “holistic process” endorsed by the Supreme Court and argues that race is a factor that does not control outcomes on its own.  UT takes account of race as one of many factors in an applicant’s “personal achievement index,” which is considered in addition to the applicant’s “academic index.” According to arguments in UT’s brief, race constitutes “a factor of a factor of a factor of a factor” in the holistic review of applicants.  When Fisher was denied admission however, she blamed her circumstances on minority students, as she concluded—without statistical support—that her academic credentials exceeded those of many admitted minority applicants.

UT’s admissions statistics tell a different story. In their brief, UT notes that a total of forty-two white applicants, with either the same or lower academic credentials than Fisher’s, were admitted to the University, while only one African-American and four Hispanic applicants with similar or lower credentials were admitted. The five minority students with lower academic credentials than Fisher’s who were admitted do not constitute “many” to the average person.  Nevertheless, there were 168 African American and Hispanic students who were not admitted to UT although they were more academically qualified than Fisher. It is worth noting that none of these more academically qualified minority students who were not admitted to UT have sued the institution for racial discrimination.

It should also be noted that Fisher rejected an offer from UT to take part in an alternative admissions program and instead enrolled at Louisiana State University where she graduated last May.  Thus, the crux of this entire case is not that Fisher was prevented from receiving an undergraduate degree, but instead that Fisher was not accepted at one of the most selective institutions of higher education in America because she believes being white put her at a disadvantage.

Misplaced blame and attacks on equal opportunity policies will persist until we change the conversation about the role of diversity in our society.  As long as we decry a minimal—and in many instances negligible—acknowledgment of race in society, diversity will remain a contentious issue.  The failure to acknowledge race and to instead pretend that America is a utopian society where race and diversity are insignificant undermines the practical realities that we face as a nation. Despite what some fear, the goal of equal opportunity admissions practices is not the realization of an ideal racial balance or an immoral system of “reverse” discrimination.  The goals of these programs are simply increased opportunities for all and more racial diversity in our ever-changing society.  

In fact, if racial balancing were the goal of holistic admissions schemes, it is obvious that most national universities are not meeting that goal.  A simple look at the numbers here at the University of Virginia School of Law make it clear that racial balancing is not an end of holistic admissions programs. In 2010, twenty-nine percent of the students in the Class of 2013 identified themselves as minority students.  In 2011, this number fell to twenty-five percent of the students in the Class of 2014, and this year, only twenty-one percent of the students of the Class of 2015 identified themselves as minorities.  

According to the 2010 Census, minorities now account for thirty-six percent of the total population, and for the first time in U.S. Census history, racial and ethnic minorities made up more than one-half of all children born in the country, totaling 50.4 percent.  Studies have shown that America’s workforce is becoming more diverse, and when holistic admissions policies like UT’s lead to more desirable results in terms of diversity, why should we malign this reasonable attempt to increase diversity in higher education? The answer is simple; we shouldn’t.  

Numerous studies have shown that an overwhelming portion of society is in favor of diversity, yet some oppose equal opportunity programs because the sensationalized opposition to these programs call them racist. The more that individuals like Fisher claim that universities with holistic processes that take diversity into account “discriminate” against her; the more people will harbor negative attitudes towards these programs.  People want diversity, but they do not want to take the steps necessary to achieve it. Holistic admissions programs are the best way to continuously increase diversity in higher education. It is an undeniable fact that states like California and Michigan, which have prohibited any use of race, have seen minority enrollment decrease at substantial rates and result in less diversity among students.

The Supreme Court has held that diversity is a valid goal in higher education, and that University officials may try to advance that goal as long as race by itself is not the decisive factor in the admissions process.  Nevertheless, despite the success of programs like UT’s that increase opportunities for the states’ constantly changing demographics, some feel that the Court should turn back the clock and hold that promoting diversity is not a compelling government interest. Rather than mischaracterizing the pursuit of racial diversity as a source of injustice in our society however, we should move forward and continue to strive for diversity in higher education for its many benefits for universities, student bodies, and our country.

The University of Virginia Black Law Students Association strives to articulate and promote the educational, professional, political, and social needs and goals of Black law students while fostering and encouraging professional competence to improve the relationship of the Black attorney to the American legal structure.

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