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Editor’s note, June 29, 2023: The Supreme Court on Thursday effectively ended affirmative action in higher education in a pair of cases concerning admissions policies at Harvard and the University of North Carolina. Read our latest coverage here. The original story, on a separate 2016 case out of Texas, follows.
The University of Texas Austin was Abigail Fisher's dream school. Fisher, from Sugar Land, Texas, a wealthy Houston suburb, earned a 3.59 GPA in high school and scored an 1180 on the SATs.
Not bad, but not enough for the highly selective UT Austin in fall 2008; Fisher's dreams were dashed when she was denied admission.
In response, Fisher sued. Her argument? That applicants of color, whose racial backgrounds were included as a component of the university's holistic review process, were less-qualified students and had displaced her.
Students graduating in the top 10 percent of any Texas high school are granted an automatic spot at UT Austin. Other students are evaluated through a holistic review process including a race-blind review of essays and creating a personal achievement score based on leadership potential, honors and awards, work experience, and special circumstances that include socioeconomic considerations such as race.
A few are accepted through provisional slots that include attending a summer program prior to the fall. One black student, four Latino students, and 42 white students with lower scores than Fisher were accepted under these terms. Also rejected were 168 African-American and Latino students with better scores than Fisher.
According to court documents, even if Fisher had received a perfect personal achievement score that included race (which, in itself, oversimplifies the admissions process), she still would not have necessarily qualified under UT's admission rubric.
In fact, when she applied for the class of 2012, the admission rate for non-automatic admits was more competitive than that of Harvard University.
Nonetheless, Fisher spent the past seven years in court, and Thursday the US Supreme Court ruled 4-3 that UT's admissions policy procedures are constitutional.
But the battle to erase race from the application review process for admission comes with an interesting paradox: "The primary beneficiaries of affirmative action have been Euro-American women," wrote Columbia University law professor Kimberlé Crenshaw for the University of Michigan Law Review in 2006.
A 1995 report by the California Senate Government Organization Committee found that white women held a majority of managerial jobs (57,250) compared with African Americans (10,500), Latinos (19,000), and Asian Americans (24,600) after the first two decades of affirmative action in the private sector. In 2015, a disproportionate representation of white women business owners set off concerns that New York state would not be able to bridge a racial gap among public contractors.
A 1995 report by the Department of Labor found that 6 million women overall had advances at their job that would not have been possible without affirmative action. The percentage of women physicians tripled between 1970 and 2002, from 7.6 percent to 25.2 percent, and in 2009 women were receiving a majority of bachelor's, master's, and doctoral degrees, according to the American Association of University Women. To be clear, these numbers include women of all races; however, breaking down affirmative action beneficiaries by race and gender seems to be rare in reported data.
Contrary to popular belief, affirmative action isn't just black. It's white, too. But affirmative action's white female faces are rarely at the center of the conversation.
Gender was a blind spot in the original affirmative action policy
Sex discrimination protections were not included when affirmative action policy was initially institutionalized in the 1960s.
The National Labor Relations Act in 1935 was one of the first federal documents to use the term "affirmative action" to correct unfair labor practices. While the Public Works Administration temporarily followed racially proportional hiring practices (which were dismantled at the end of World War II), it wasn't until President John F. Kennedy issued an executive order in 1961 requiring affirmative action to counter employment discrimination among federal contractors, with specific attention to race, that affirmative action was institutionalized.
In some ways, the narrow focus on "race" and "color" was the government's response to the demands of the burgeoning civil rights movement that brought racial discrimination front and center in America.
However, affirmative action was ambiguous, referring, at the very least, to federal contractors taking a step or gesture in opposition of discriminating against groups of people, but one of the limits of the order was that penalties were not enforceable.
Kennedy created a President's Committee on Equal Employment Opportunity to monitor the order, chaired by then–Vice President Lyndon B. Johnson.
However, it was not until October 1967, following pressure from the surging Women's Movement, that President Johnson amended an earlier order to include gender provisions. Further actions would be taken in 1973 and 1974 to address anti-discrimination protections for people with disabilities and Vietnam veterans, respectively.
White women have become some of affirmative action's fiercest opponents
In general, women today are more educated and make up more of the workforce than ever before, in part because of affirmative action policies. Indeed, from the tech industry to publishing, diversity has emerged as an overwhelming increase in the presence of white women, not necessarily people of color.
Incidentally, over the years white women have become some of affirmative action's most ardent opponents.
According to the 2014 Cooperative Congressional Election Study, nearly 70 percent of the 20,694 self-identified non-Hispanic white women surveyed either somewhat or strongly opposed affirmative action.
White women have also been the primary plaintiffs in the major Supreme Court affirmative action cases, with the exception of the first — Regents of the University of California v. Bakke in 1978 — that was brought to the courts by a white man.
Twenty-five years after Bakke found that race can be one but not the only criterion for evaluating admissions applications, four white women have filed lawsuits seeking retribution for admissions rejections based on the premise that they were denied a spot over less-deserving students of color.
The first successful case to challenge affirmative action policy was Hopwood v. Texas in 1996. Cheryl Hopwood claimed that despite excellent scores and fitting the profile of a surefire admit, the University of Texas School of Law admitted 62 people of color, only nine of whom had better LSAT and GPA scores than she did.
The Fifth Circuit Court of Appeals ruled that diversity alone was not enough to justify racial preferences. For example, only Mexican-American and African-American students' racial backgrounds were taken into consideration at UT's law school. The Supreme Court refused to hear the case, but the decision dismantled UT's earlier racial affirmative action policy and catalyzed UT's 10 percent policy to admit the best students in a state that still suffers from de facto segregation according to UT's Supreme Court briefs for the Fisher case.
But in 2003, two other white women approached the Court in parallel cases citing a misuse of race in admissions policies. In Grutter v. Bollinger, Barbara Grutter argued that she was denied admission to the University of Michigan Law School as a direct result of the law school's consideration of race in the admissions process. In Gratz v. Bollinger, Jennifer Gratz argued similarly that she was denied acceptance to the University of Michigan's flagship university in Ann Arbor as an undergrad because of race.
The Supreme Court decisions were split between the two cases. In Gratz, the justices ruled that race was being valued in ways that violated the Constitution's Equal Protection Clause — students received 20 points if they were from an underrepresented racial group compared with 5 points for artistic achievement. However, the justices ruled in Grutter that there was nothing unconstitutional about the way race was included in the law school's holistic admissions policy.
The primary distinction between the two decisions had to do with the weight given to race in affirmative action admissions policies. Nonetheless, Justice Sandra Day O'Connor had high hopes for such programs.
"We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today," O'Connor wrote for the majority in Grutter.
Justice Anthony Kennedy, while recognizing the University's complex policy, reiterated O'Connor's sentiments in Fisher.
"The Court's affirmance of the University's admissions policy today does not necessarily mean the University may rely on that same policy without refinement," Kennedy wrote for the majority opinion. "It is the University's ongoing obligation to engage in constant deliberation and continued reflection regarding its admission policies."
Racial affirmative action doesn't undermine merit
"I'm hoping that they'll completely take race out of the issue in terms of admissions and that everyone will be able to get into any school that they want no matter what race they are but solely based on their merit and they work hard for it," Fisher told the New York Times in 2012.
But does race inherently undermine an admit's qualifications?
The question itself is dubious considering the fact that other forms of affirmative action, including gender, are rarely mentioned. The aforementioned CCES survey, which only asked about racial affirmative action, is just one example.
Yet it's a widespread assumption that even Justice Antonin Scalia brought to the fore last December during oral arguments for the Fisher case. He asserted that affirmative action hurts African-American students by putting them in elite institutions they are not prepared for. Study after study shows there's simply no evidence for the claim.
A look at the effects of affirmative action bans also suggests the idea is based on a false dichotomy. Since California passed Prop 209 in 1996 barring racial considerations for college admissions at public universities, UC Berkeley witnessed a significant drop in the number of black students, from 8 percent pre–Prop 209 to an average of 3.6 percent of the freshman class from 2006 to 2010.
But that drop isn't necessarily tied to underqualified students of color. Rather, 58 percent of black students admitted from 2006 to 2010 rejected Berkeley's offer of admission. Alumni, administrators, and current students noted that a possible reason could be a feeling of isolation, or lack of other students of color, at UC's flagship campus — an ironic consequence of the affirmative action ban.
Asian-American applicants also challenge the colorblind meritocracy myth. According to a sociological study in 2009, white applicants were three times more likely to be admitted to selective schools than Asian applicants with the exact same academic record. And a 2013 survey found that white adults in California deemphasize the importance of test scores when Asian Americans, whose average test scores are higher than white students, are considered.
Furthermore, existing race-neutral admissions policies like legacy admissions show that taking race out of the equation doesn't make admissions processes any more just.
According to a 2011 study by the Chronicle of Higher Education, a review of 30 elite universities' admissions processes found that a legacy connection gave an applicant a 23.3 percentage point advantage over a non-legacy applicant. For applicants who had a parent who was an alum, the average advantage was 45.5 percentage points.
Many college campuses, however, have historically had predominantly white student bodies — 84 percent of college students in the US were white in 1976 compared with only 60 percent in 2012 — which makes it far more likely that the beneficiaries of legacy admissions practices are white applicants like Fisher, whose sister and father went to UT Austin.
Fisher advocated for a colorblind, meritocratic admissions process for which she, as an individual, may still not have been qualified. But a look at the marginalized group that has most benefited from affirmative action shows that race was never a barrier for that group to begin with.
White women, like Fisher, stand as a testament to affirmative action's success. If anything, the dismantling of affirmative action is launched at people of color, but it affects white women, too. And the willingness to erase them from the story is part of the problem.
