Affirmative Action is Dead--Love Live Discrimination! But isn’t Title IX an affirmative action program?

I was listening to a “progressive” radio show last week when the host gave me the idea for the title to this post. He was referencing the current U.S. Supreme Court case  Fisher v. The University of Texas--which he asserted would kill affirmative action for good. Texas has a program where the top ten of a high school graduation class has first digs at being admitted to a school in the University of Texas system. However, the state determined that since the program was instituted, the number of under-represented minorities decreased by a third, and it sought to use race as one factor in determining admission outside the ten percent; much of the argumentation during the session was what was the “critical mass” of under-represented minorities after which race need not be considered a factor.

The “petitioner” in the case is a pale, red-haired female named Abigail Fisher with a rather self-satisfied demeanor, if her photo in USA Today last October suggests anything. However, she is likely merely the “face” of a right-wing organization opposed to anything that even hints at “racial preference”—as if this society doesn’t practice de facto racial preference for whites in a major way. Fisher in fact has already graduated from another school (Louisiana State University), but her complaint was that since one school in the Texas system (UT Austin) had not admitted her, she had been “injured” as a result.

During the initial arguments in October, Justice Sonia Sotomayor insisted that petitioner’s attorney, Bert Rein, state how Fisher had been injured by the Texas program, but could not get an answer that made any sense. Sotomayor condemned Rein’s claim that just because a demographic (blacks and Latinos) was vastly underrepresented (as opposed to white females and Asians, who are vastly over-represented), this was not an issue of national concern. Sotomayor suggested that the lack of equal opportunity to educational achievement led to social isolation which underrepresented minorities were more likely to experience. Antonin Scalia, not surprisingly, denied that the “demographic make-up” of underrepresentation has anything to do with social isolation. Rein posited that “racial balance” was not a “permissible interest” of society. Sotomayor questioned Rein about what he thought should be the “critical mass” of admission under-represented minorities; Rein denied that the state had a right to establish a number. Justice Stephen Breyer challenged Rein concerning if he thought a 5 percent admittance rate for blacks (out of a 12 percent demographic) was “enough.” Rein only replied with mumbo-jumbo. 

Sotomayor then asked the most pertinent question of all: Out of all the factors used to weigh admissions (including gender), why was race being targeted above all the others? Again, Rein was unable to give a sensible answer. It is clear that for the right, on a social level race defines who they are. For them, this is a “white” country, and to keep it that way, they are willing to create a permanent underclass without hope. This is not only extremely short-sighted, but tantamount to national suicide; the question is whether a majority of the court will see it that way.

Gregory Garre, speaking for the respondents, seemed to become frustrated with Scalia’s absurd line of questioning about who was or was not Hispanic, and that the university was inventing numbers of how many underrepresented minorities were admitted, and whether  school officials walked into classes to make a “head count” of anyone who “looked” Hispanic. Garre asserted that the university never claimed a “compelling” interest in determining who was in what individual classroom, but that “This Court in Grutter (the 2003 Michigan case which upheld affirmative action in admissions) recognized the obvious fact that the classroom is one of the most important environments where the educational benefits of diversity are realized, and so the University of Texas, in determining whether or not it had reached a critical mass, looked to the classroom.”

Samuel Alito and John Roberts kept badgering Garre about how many black and Hispanic students should be in each classroom, but he pointed out that after the 10 percent rule was instituted, the gross numbers of underrepresented minorities had remained stagnant or declined. “Admissions under the top 10 percent plan, taking the top 10 percent of a racially identifiable high school may get you diversity that looks okay on paper, but it doesn't guarantee you diversity that produces educational benefits on campus. And that's one of the considerations that the university took into account as well.”

Scalia then ludicrously badgered Garre about whether the university wanted to include more minorities in order to increase the number of students with a different “political” viewpoint—say, different than his. Garre retorted that the university’s aim was to increase the number of students with varied experiences on campus, and that “I think it directly the educational benefits of diversity in this sense, that the minority candidate who has shown that he or she has succeeded in an integrated environment, has shown leadership, community service, the other factors that we looked at in holistic review, is precisely the kind of candidate that's going to come -- come on campus, help to break down racial barriers, work across racial lines, dispel stereotypes.”  

U.S. Solicitor General Donald Verrilli admitted that the original10 percent plan produces “some” ethnic diversity. But “The problem is the university can't control that diversity in the same way it can with respect to the percent of the class that is admitted through the holistic process…what universities generally are looking to do in this circumstance, is not to grant a preference for privilege, but to make individualized decisions about applicants who will directly further the educational mission. For example, they will look for individuals who will play against racial stereotypes just by what they bring: The African American fencer; the Hispanic who has -- who has mastered classical Greek.” Alito cut in to make the usual assumption about “inferior” students being admitted; Verrilli responded that this was not an issue, and that “the University of Texas is trying to achieve is to create an environment in which everyone develops an appropriate sense of citizenship, everyone develops the capacity to lead in a racially diverse society.”

Rein returned to offer his “rebuttal.” Sotomayor again demanded to know how Fisher had been “injured” by the Texas program, since she had already graduated from LSU when the suit was filed. Grein claimed that Fisher had not “ascertained” the “injury” she had sustained at the time. He suggested that she was “injured” by differing costs of attending one or the other schools, and that one school might be considered “superior” by an employer. These may not be “petty” complaints, but they do seem to underscore just how far the right will go to explain their position as something other than by a racist impulse.

In any case, last week that talk show host, who says he is a progressive and “serves justice,” seemed not to understand what was at stake here. In fact he seemed critical of the arguments made in support of affirmative action, and finally decided that when the Supreme Court handed down its decision next year, “Affirmative action is dead.” His tone suggested “and good riddance.” With attitudes like this, it isn’t surprising that every time affirmative action has ever come-up in a state referendum, it has always been defeated. But who is making that decision? Majority white voters; does no one see the hypocrisy in the fact that despite laws and court decisions meant to insure equal opportunity, when it comes down to a “popular” vote, it is always majority white voters who decide what is or what isn't discrimination? Minority voters know what discrimination is, but they have no say in combatting it; they have to live with it, just because most whites don’t want to face-up to it.

The hypocrisy about affirmative action is no less clear when one considers the existence of Title IX for women—which is not just about sports (and men are more interested in sports than women--just look at the "interest" in the WNBA, even among women). Title IX is meant to enforce “equal opportunity” for women first in admissions, and then in historically under-represented scholastic fields.  That's affirmative action, and white women are the principle beneficiaries of it—just as they were with the original form; but because women outnumber men 57-43 in college attendance—despite the fact that the SAT Board shows than males score higher than females on the SAT—white women have the political clout, because of their plurality in numbers, to keep gender-based affirmative action in place, even if the numbers show that it has effectively become much more “unjust” than race-based affirmative action. The remarkable thing is that no one in the media or even the right has the honesty to call it what it is; yet when it comes to affirmative action in which racial minorities appear to benefit—despite the fact they continue to be under-represented—this is somehow “unjust” to whites, both males and, apparently, females. Who is really “victim” and victimizer in this society is certainly a question open to debate.

The danger of allowing the majority in this country to decide what is “good” for the minority—such as denial of educational opportunity—is what University of Texas president Bill Powers said it will be the Supreme Court strikes down its program: It  "would be a setback for the university and society." Powers said that "The issue back then was about excluding African-Americans and we were on the wrong side of history. The University of Texas lost that case, but the nation won."