US Supreme Court Justice Antonin Scalia has stirred up a hornet’s nest with his comments that black students may perform better at a “slower-track school”. He further set the cat among the pigeons by suggesting that universities are adversely affected when minority students are admitted to unsuitable elite institutions.
His comments came during a hearing in the Fisher v. University of Texas case on December 9, 2015. It is a case brought by Abigail Fisher – a white student – who claims that she was denied admission at the University of Texas because of her race. She also claimed that less qualified students of colour were given admission due to racial preference.
University of Texas-Austin denied Fisher admission in 2008 following which she filed a discrimination suit claiming she was rejected due to affirmative action. Subsequently, her case went to the US Supreme Court as well as a lower appeals court when she lost, and now it is back to the Supreme Court.
Affirmative action is the policy of favouring members of a disadvantaged group who suffer from discrimination within a culture. It is also known as employment equity in Canada, reservation in India and Nepal and positive action in the UK.
At issue is a particular admissions policy at the University of Texas which allows for race to be considered for a portion of its applicants. During a session of oral arguments, Scalia interjected that such policies in higher education are not helping African-American students.
“There are those who contend that it does not benefit African Americans to get them into the University of Texas, where they do not do well, as opposed to having them go to a less-advanced school, a slower-track school where they do well,” he said.
“One of the briefs pointed out that most of the black scientists in this country don’t come from schools like the University of Texas. They come from lesser schools where they do not feel that they’re being pushed ahead in classes that are too fast for them,” Scalia said on December 9.
Scalia, a conservative justice who’s served on the Supreme Court since 1986, has been a long-time critic of affirmative action.
Scalia did not say that he personally believed that black students are better off at less-rigorous schools; he introduced the suggestions by saying “There are those who contend that…,” and was reportedly referencing an amicus brief written by a UCLA law professor.
The University of Texas uses a hybrid admissions policy; 75% of students are accepted on the basis that they ranked in the top 10% of their respective high schools, and the remaining 25% are accepted based on a holistic application process that includes race as one of many categories considered.
The holistic review process, as described by the University of Texas in court filings, is “intended to identify and reward students whose merit as applicants was not adequately reflected by their class rank and test scores”. The University reviews a candidate’s race and gender along with leadership, extracurricular activities, languages spoken at home, socio-economic status, and other factors.
As Fisher finished outside the upper decile of students at her high school, her application would have been among the latter 25% considered. She was rejected.
Fisher, who applied to the University of Texas in 2008, didn't qualify under the top 10 percent plan, nor was she admitted under holistic review.
Fisher's academic qualifications were just average, and the university claimed that she wouldn't have been admitted even if she did get an extra boost for being a member of a minority group.
Taking a closer look, Fisher’s application may not have been good enough to get admission that year. The University of Texas did accept approximately 47 students who had slightly lower grades and whose applications differed from hers in other criteria – of those 47 students, 42 were white. Because Fisher could not prove that she would have been accepted otherwise, her lawyers would argue the injury occurred when the University considered her race. Due to equal protection laws, goes the argument, affirmative action practices that aim to increase diversity hurt white applicants.
As the Supreme Court put it in Grutter v. Bollinger, a well-known 2003 decision on affirmative action in higher education, “Whenever the government treats any person unequally because of his or her race, that person has suffered an injury that falls squarely within the language and spirit of the Constitution’s guarantee of equal protection.”
The Fisher case is not about whether she deserved to be admitted to the University of Texas, but about her constitutional right to a non-discriminatory admissions process. It is not about how strong her application was, but about whether the University was justified in judging it by different standards than those used to evaluate black and Hispanic applicants.
The case has the potential to derail affirmative action across the US.
If the Supreme Court wants to overturn affirmative action, it needs to address its own precedents. In Bakke v. California in 1978, the Court ruled that colleges can't use a quota system to ensure they have enough diversity, but that affirmative action was constitutional in some circumstances.
The last major decision about affirmative action was 2003’s Grutter v. Bollinger, a case about the University of Michigan's affirmative action policies.
In that 5-4 decision, the Court ruled that colleges could take race into account as one factor in a holistic review when admitting applicants.
