Journalism in the Public Interest


A Colorblind Constitution: What Abigail Fisher’s Affirmative Action Case Is Really About

The plaintiff in the Supreme Court case challenging the use of race in college admission looks to be the perfect argument. But the case barely mentions her. Instead, the agenda is much broader: To fight race-based policies everywhere.

Abigail Fisher and Edward Blum walk outside the Supreme Court in October 2012. (Susan Walsh/AP Photo)

Update, June 29, 2015: The Supreme Court on Monday announced that it would again hear Fisher v. Texas, an affirmative action case in which a white woman claims she was denied admission to the University of Texas because of her race. In 2013, the Court ruled narrowly on the case, requiring the federal appeals court that had ruled against the woman, Abigail Fisher, to re-examine her arguments. Last year, the appeals court again decided against Fisher, affirming that race could be one of the factors considered in trying to diversify the student body at the university.

Months ago, Linda Greenhouse, the Supreme Court expert, asked of the Fisher case: “What will the court do? Let the latest Fifth Circuit opinion, with its endorsement of race-conscious admissions, stand unreviewed? Or plunge back into the culture wars with a case that sorely tested collegial relations among the justices two years ago and that promises to be at least as challenging a second time around?”

The court has now chosen its path. It will re-engage.

In 2013, ProPublica published what became one of the most provocative analyses of the Fisher case. It highlighted an overlooked, deeply ironic fact about the case: when one actually looked at Fisher’s arguments, she actually had not been denied admission because of her race, but rather because of her inadequate academic achievements. Read that analysis, originally published March 18, 2013, below.

Original story:

When the NAACP began challenging Jim Crow laws across the South, it knew that, in the battle for public opinion, the particular plaintiffs mattered as much as the facts of the case. The group meticulously selected the people who would elicit both sympathy and outrage, who were pristine in form and character. And they had to be ready to step forward at the exact moment when both public sentiment and the legal system might be swayed.

That's how Oliver Brown, a hard-working welder and assistant pastor in Topeka, Kan., became the lead plaintiff in the lawsuit that would obliterate the separate but equal doctrine. His daughter, whose third-grade innocence posed a searing rebuff to legal segregation, became its face.

Nearly 60 years after that Supreme Court victory, which changed the nation, conservatives freely admit they have stolen that page from the NAACP's legal playbook as they attempt to roll back many of the civil rights group's landmark triumphs.

In 23-year-old Abigail Noel Fisher they've put forward their version of the perfect plaintiff to challenge the use of race in college admissions decisions.

Publicly, Fisher and her supporters, chief among them the conservative activist who conceived of the case, have worked to make Fisher the symbol of racial victimization in modern America. As their narratives goes, she did everything right. She worked hard, received good grades, and rounded out her high school years with an array of extracurricular activities. But she was cheated, they say, her dream snatched away by a university that closed its doors to her because she had been born the wrong color: White.

The daughter of suburban Sugar Land, Texas, played the cello. Since the second grade, she said, she dreamed of carrying on the family tradition by joining her sister and father among the ranks of University of Texas at Austin alumni.

And the moment for her to lend her name to the lawsuit might never be riper: The Supreme Court has seated its most conservative bench since the 1930s. The Court is expected to issue a decision any week now in what is considered one of the most important civil rights cases in years.

On a YouTube video posted by Edward Blum, a 1973 University of Texas graduate whose nonprofit organization is bankrolling the lawsuit, she is soft-spoken, her strawberry blond hair tucked behind one ear. Not even a swipe of lip gloss adorns her girlish face.

"There were people in my class with lower grades who weren't in all the activities I was in, who were being accepted into UT, and the only other difference between us was the color of our skin," she says. "I was taught from the time I was a little girl that any kind of discrimination was wrong. And for an institution of higher learning to act this way makes no sense to me. What kind of example does it set for others?"

It's a deeply emotional argument delivered by an earnest young woman, one that's been quoted over and over again.

Except there's a problem. The claim that race cost Fisher her spot at the University of Texas isn't really true.

In the hundreds of pages of legal filings, Fisher's lawyers spend almost no time arguing that Fisher would have gotten into the university but for her race.

If you're confused, it is no doubt in part because of how Blum, Fisher and others have shaped the dialogue as the case worked its way to the country's top court.

Journalists and bloggers have written dozens of articles on the case, including profiles of Fisher and Blum. News networks have aired panel after panel about the future of affirmative action. Yet for all the front-page attention, angry debate and exchanges before the justices, some of the more fundamental elements of the case have been little reported.

Race probably had nothing to do with the University of Texas's decision to deny admission to Abigail Fisher.

In 2008, the year Fisher sent in her application, competition to get into the crown jewel of the Texas university system was stiff. Students entering through the university's Top 10 program — a mechanism that granted automatic admission to any teen who graduated in the upper 10 percent of his or her high school class — claimed 92 percent of the in-state spots.

Fisher said in news reports that she hoped for the day universities selected students "solely based on their merit and if they work hard for it." But Fisher failed to graduate in the top 10 percent of her class, meaning she had to compete for the limited number of spaces up for grabs.

She and other applicants who did not make the cut were evaluated based on two scores. One allotted points for grades and test scores. The other, called a personal achievement index, awarded points for two required essays, leadership, activities, service and "special circumstances." Those included socioeconomic status of the student or the student's school, coming from a home with a single parent or one where English wasn't spoken. And race.

Those two scores, combined, determine admission.

Even among those students, Fisher did not particularly stand out. Court records show her grade point average (3.59) and SAT scores (1180 out of 1600) were good but not great for the highly selective flagship university. The school's rejection rate that year for the remaining 841 openings was higher than the turn-down rate for students trying to get into Harvard.

As a result, university officials claim in court filings that even if Fisher received points for her race and every other personal achievement factor, the letter she received in the mail still would have said no.

It's true that the university, for whatever reason, offered provisional admission to some students with lower test scores and grades than Fisher. Five of those students were black or Latino. Forty-two were white.

Neither Fisher nor Blum mentioned those 42 applicants in interviews. Nor did they acknowledge the 168 black and Latino students with grades as good as or better than Fisher's who were also denied entry into the university that year. Also left unsaid is the fact that Fisher turned down a standard UT offer under which she could have gone to the university her sophomore year if she earned a 3.2 GPA at another Texas university school in her freshman year.

In an interview last month, Blum agreed Fisher's credentials and circumstances make it difficult to argue — as he and his supporters have so ardently in public — that but for her race Fisher would have been a Longhorn.

"There are some Anglo students who had lower grades than Abby who were admitted also," Blum told ProPublica. "Litigation like this is not a black and white paradigm."

Blum started his one-man nonprofit, the Project on Fair Representation, in 2005. The organization is funded by deep-pocketed conservatives to, according to its website, influence "jurisprudence, public policy, and public attitudes regarding race and ethnicity" in voting, education, contracting and employment. To do so, Blum — who is not a lawyer — helps arrange pro bono representation to fight race-based policies that were meant to address inequalities.

According to a Reuters profile, Blum has brought at least a dozen lawsuits against such programs and laws — including four that made it to the Supreme Court. He has two on the current docket, Fisher and the Shelby County, Ala., case challenging a key provision of the Voting Rights Act.

In the Fisher case, while the young woman may have lent her name to the lawsuit, the case before the Court has very little to do with her. Her name appears just five times in the thousands of words that make up the body of the complaint. She has already gone on to graduate from Louisiana State University, her second choice, and is working in finance at a firm in Austin.

Asked by a news reporter what harm she had suffered, she cited only her inability to tap into UT's alumni network and possibly missing out on a better first job. If she wins, Fisher seeks only the return of her application fee and housing deposit — a grand total of $100 in damages.

So while the Fisher case has been billed as a referendum on affirmative action, its backers have significantly grander ambitions: They seek to make the case a referendum on the 14th Amendment itself. At issue is whether the Constitution's equal protection clause, drafted by Congress during Reconstruction to ensure the rights of black Americans, also prohibits the use of race to help them overcome the nation's legacy of racism.

The Supreme Court has never ruled that the Constitution bars any and all laws and government programs that consider race. But Blum and his supporters, seeing an opening with the current Court, seek to overturn more than a century of precedent.

The true crux of the suit is not Fisher's failed application, but that government officials violate the constitutional rights of white Americans when they consider race in a way that might help African-Americans and Latinos.

"An argument can be made that it is simply impossible to tease out down to the last student who would have been admitted, and who would have not been admitted, had they been a different skin color," Blum said. "What we know is skin color is weighed and ethnicity is weighed by the University of Texas in their admissions process, and that alone is enough to strike down the plan."

Blum and his supporters say the reasoning is simple. The Constitution is colorblind and the equal protection clause of the 14th Amendment prohibits the government from treating people differently because of race.

It's an argument first successfully championed by the NAACP and other civil rights groups, most notably in the landmark Brown v. Board of Education case, in which the Supreme Court declared the notion of "separate but equal" to be a fallacy.

"In its history, colorblindness has this progressive, anti-racist push behind it," said Ian Haney-López, a constitutional scholar at the University of California, Berkeley School of Law.

But following the Brown decision, the very groups that had ardently — and violently — defended laws mandating separation by race used the notion of a colorblind Constitution to challenge court orders to integrate schools.

"They began to say, yes, the Constitution is colorblind, and so the state cannot distinguish between races when it tried to remedy segregation," he said.

U.S. Deputy Marshals escort Ruby Bridges from William Frantz Elementary School in New Orleans, La., in November 1960. (AP Photo)As a result of Southern resistance, it would take six years after Brown before 6-year old Ruby Bridges, wearing crisp white socks and black-bowed shoes, became the first black student to attend a white elementary school in the South. The image of the diminutive brown-skinned girl who needed U.S. marshals to protect her from an angry white mob inspired Norman Rockwell to preserve the moment in a painting that now hangs in the White House occupied by the first black president.

Initially, the Supreme Court unambiguously knocked those arguments down. In a 1971 ruling, it said that government could not mandate colorblindness when doing so would defeat the integration requirement of Brown v. Board of Education. A few years later, in a ruling on affirmative action, Justice Harry Blackmun wrote, "In order to get beyond racism, we must first take race into account. There is no other way."

But as the Supreme Court's make-up has grown more conservative, it has taken up a steady stream of so-called reverse discrimination cases, in which white plaintiffs have argued that race-specific measures born of the civil rights movement discriminate against white Americans and violate the 14th Amendment.

Supreme Court decisions have eroded programs and laws that use race to remedy inequalities, but not eliminated them altogether. And in a 2003 opinion written by centrist Sandra Day O'Connor, the justices narrowly upheld affirmative action in college admissions when it is the only means to ensure diversity.

But the Court's make-up changed in what scholars consider a significant way when Samuel Alito, considered the third most conservative Supreme Court justice since 1937, replaced O'Connor in 2006. Since then, several justices have made their constitutional disdain for race-conscious programs known. In a controversial 2007 decision, Chief Justice John Roberts sent a clear message when he used the equal protection argument at play in Brown v. Board of Education to strike down voluntary desegregation plans in schools.

Evoking a colorblind Constitution, Roberts said, "The way to stop discriminating on the basis of race, is to stop discriminating on the basis of race."

And just last month during oral arguments over the constitutionality of a key aspect of the Voting Rights Act, Justice Antonin Scalia derisively called what's considered the most successful civil rights law in history a "racial entitlement."

Public opinion on race has changed over time as well. In the 1950s, surveys show, most white Americans believed that black Americans faced substantial discrimination but that they themselves experienced little. Today, despite gaping disparities between black and white Americans in income, education, health care, homeownership, employment and college admissions, a majority of white Americans now believe they are just as likely, or more likely, to face discrimination as black Americans.

Blum chose the University of Texas to mount what could be a decisive challenge to affirmative action in college admissions because it already had what was regarded as a "race-neutral" process — the Top 10 program. Since many Texas high schools remain segregated, taking the top 10 percent of students from black and Latino high schools ensured a substantial population of students of color at the UT.

As a consequence, Blum believed he could challenge whether the additional use of race to fill out the entering class passed constitutional muster.

To get standing in court, Blum needed a victim. That's when he started looking for a version of the Brown family, someone who could represent the arguable hurt caused when public officials used race.

This approach, too, mirrors an NAACP tactic from half a century ago. Then, knowing the Supreme Court was unlikely to throw out segregation in one fell swoop, the civil rights group brought a narrower challenge to segregated school facilities first.

One of those cases, ironically, targeted the same university as Blum — the University of Texas at Austin. The university, which had been closed to black students since its founding, denied the law school application of Heman Marion Sweatt because the state constitution required that black and white students attend separate schools.

Because Texas had no black law school, the NAACP sued, arguing that the state violated the constitutional mandate to provide equal facilities for black and white students. The Supreme Court ruled that the hastily put together black law school created to avoid admitting Sweatt could not possibly be equal. It ordered Texas to admit Sweatt as its first black student in 1950.

That suit launched the stone that would shatter separate but equal just four years later when the Court struck down segregation in schools in Brown.

Blum and his supporters hope to use the Fisher case, and the 14th Amendment challenge to the Voting Rights Act that Blum is also behind, in the same way.

According to Blum, the Constitution sees affirmative action policies — in college, in contracting, in employment — and Jim Crow laws as twin evils.

"I don't see the distinction," he said.

But several constitutional scholars interviewed for this piece dispute this notion. Neil Siegel of Duke University called this interpretation of the 14th Amendment "perverse." Georgetown law professor Girardeau A. Spann called it "discriminatory."

While the 14th Amendment doesn't mention race, the drafters went on to pass race-specific legislation aimed at helping former slaves and other black Americans overcome more than a century of racial oppression.

Erwin Chemerinsky, founding dean of the University of California, Irvine School of Law, said that the concept of colorblindness holds great rhetorical appeal but that "there is no basis for concluding that the 14th Amendment equal protection clause requires colorblindness." In drafting the 14th Amendment, he said, Congress recognized "an enormous difference between a white majority disadvantaging minorities and a white majority acting to remedy past discrimination."

Conservatives challenging these types of programs purport to champion the legacy of the civil rights movement, Haney-Lopez said, but the historical roots of their efforts are much more cynical.

"I think that is incredibly important that people realize that today's proponents of colorblindness pretend that they are the heirs to Thurgood Marshall and John Marshall Harlan," he said. "But that is a lie. They are the heirs of Southern resistance to integration. And the colorblindness arguments that they use come directly from the Southern efforts to defeat Brown v. Board of Education."

Ilya Shapiro, a senior constitutional studies fellow at the Cato Institute, which filed an amicus brief supporting Fisher, thinks otherwise.

"I am not going to speak to anyone else's motives. It is unfair to paint people with the Jim Crow brush because they have those kinds of arguments," he said. "I don't like people being judged based on the color of their skin." If a program "treats people different because one has a different skin color, I find that offensive and I think the Constitution does as well."

But when asked why the drafters created programs targeted to black Americans if they did not intend the Constitution to allow the government to use race to help minority groups, Shapiro said, "It was a curious period."

At the same time Congress drafted the equal protection clause, he said, it also "voted for segregated schools in the District of Columbia."

That example is the very same one that segregationists Strom Thurmond and Richard Brevard Russell used when they drafted the 1956 Southern Manifesto urging officials to resist the Supreme Court's use of the equal protection clause to overturn school segregation.

The impact of a ruling that bans all racial considerations by universities, employers and governments "could have devastating impact on the ability to overcome past inequalities," Siegel said.

Few experts think Blum and his supporters are apt to win that big a victory in the Fisher case. And so he will likely be on the hunt again for another case, and another perfect plaintiff.

Update, July 16, 2014: A federal appellate court has ruled in favor of the University of Texas at Austin's affirmative action program, allowing the university to continue considering race as part of its "holistic" review process that also takes into consideration socioeconomic status, whether English is spoken at home and if students come from single-parent homes. In June of 2013, the Supreme Court avoided a larger ruling on affirmative action, instead remanding the case back to the lower court for reconsideration, saying the lower court had not properly applied "strict scrutiny" in judging UT's use of race.

Tuesday, the U.S. Court of Appeals for the Fifth Circuit in a 2-1 decision ruled UT's program was in fact narrowly tailored and did meet the "strict scrutiny' standard.

"The impact of the holistic review program on minority admissions is already narrow, targeting students of all races that meet both the competitive academic bar of admissions and have unique qualities that complement the contributions of Top Ten Percent Plan admittees," the Court wrote. "The data also show that white students are awarded the overwhelming majority of the highly competitive holistic review seats."

The order also explicitly addresses the high degree of segregation in Texas schools, the often inferior education they provide, that its direct correlation to the lower test scores of black and brown students seeking admission to the flagship school.

Read the entire ruling here, and also ProPublica's report examining whether whether class-based affirmative action is a good alternative to race-based.

I went to a public school, and being from one of the poorest neighborhoods in the city did not receive high quality education. I am a minority woman. Perhaps, that allowed me to get into college. However, when I entered college I was able to catch up to everyone else, the majority being white Caucasian students from middle class families. All throughout college, I was embarrassed to even tell anyone what high school I went to or where I lived. I rarely invited a friend over to my house. I remember my first Literature class, when the teacher pulled me aside and told me she was going to help me and give me extra attention to bring me up to par. By the end of the quarter I was on equal ground to all the other students. This is why affirmative action is important. In high school, many of the teachers don’t expect the students to be smart and so they don’t expect much from them and treat them as such, and many times you believe it. In college, I was able to overcome many obstacles and catch up to everyone else in their education.

There continues to be a tremendous amount of racism in this country. I am a white male, living in NYC and when the subject of race is brought up in conversation amongst white people, it is inevitable that racist comments will be made. I have been called a N* lover, among other things because I always renounce their remarks.

Charles, who are you hanging out with? I’m a white guy with mostly white friends and none of them ever talk like that.

Glad I live in the west.

Anytime factors other than MERIT determine who gets admitted or who get a job - that is wrong & self defeating to all parties, in my experience & view.  I have been self employed and hired others for nearly 50 years. I have hired a few people for emotional reasons - I felt they had not had a fair shake in life, were mistreated by others, etc.  In each such case, I ended up letting them go -gently. I have for the past 15 years resisted hiring for any reason other than merit.  I wish all levels of government would hire as I now do. Taxpayers money is wasted to do otherwise. Personal responsibility should lead one to a job level they can handle, or family or charity should assist, but Government should not serve as charity.

Is there a typo in the last quote:

The impact of a ruling that bans all racial considerations by universities, employers and governments “could have devastating impact on the ability to overcome past equalities,” Siegel said.

Should it be ‘inequalities’ rather than ‘equalities’?

The truth is school admission can never be an accurate barometer of “merit.” There are far too many variables determining why an individual has (or lacks) a particular set of credentials, be it a GPA, a record of extra curricular activities, or something else. Even under the fairest of circumstances, there will always be a deserving person who is rejected and a marginal one who gets in. Since that is the case, it makes sense to openly include an element of chance in the admissions process. Not for all, but for a percentage of available slots, there could be a kind of lottery for those who meet certain minimum criteria. To me that would be acknowledging the truth that we have no definitive way of measuring each other.

“There are some Anglo students who had lower grades than Abby who were admitted also,” Blum told ProPublica. “Litigation like this is not a black and white paradigm.”

LOL does anyone else see the irony in his choice of words?

“Today, despite gaping disparities between black and white Americans in income, education, health care, homeownership, employment and college admissions, a majority of white Americans now believe they are just as likely, or more likely, to face discrimination as black Americans.”


This nation has a heavy legacy of racism that is still responsible for huge inequalities existing today, and the proliferation of distorted perceptions (as seen in the quote above) only distances us farther from our goal of equality, and indeed from each other.


On May 17, 1954, the Supreme Court issued a unanimous ruling in Brown v. Board of Education of Topeka. Chief Justice Warren, former governor of California, wrote:

To separate [the Negro children] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.

Can current practices ever undo past injustices without creating new injustices?  I don’t think so.  Perhaps admissions to colleges and universities should simply be colorblind, ethnic blind, native language blind, and blind to economic status.

Charles Sifers

March 18, 2013, 5:04 p.m.

As was stated above, “There continues to be a tremendous amount of racism in this country”.
We see it when we are told that blacks can’t compete with whites in school and the workforce.
We see it when the government discriminates against whites in favor of blacks for money for jobs and education.
And, we see it when the government lowers standards for blacks because we all know that “blacks can’t compete with whites”.
If you support affirmative action, you are a racist.
Get over yourselves and stop contributing to this.

But Fisher failed to graduate in the top 10 percent of her class…

That says it all to me; although unwilling to do the hard work required to guarantee her admission, she feels entitled to admission.

Especially if the competition are “just” people of color.

I feel it is true that we can not repay injustices of our fore fathers. Given that to be true we will forever be in debt for their sins. Affirmative Action was a tool that was designed to “repay the sins” its addictive to some and its past time to pull support. Strike it down.

I am a white American from extremely poor roots of the southern coal fields of West Virginia—it took me until I was 40 years old to enter college which led to a degree. It was a long difficult journey. My point is that people of all races can succeed. It is just plain wrong by legislation to give special treatment to any one class of peoples.

My experience around racism has been institutions dominated with the enlightened liberal folks and as well what has been termed as reverse racism.

To me equality means hard work and perseverance.

give me a break! anyone who goes through the college process knows there’s always kids who you think that will get into certain schools that dont and others that do and that goes for all races.

It’s subjective to begin with…if you want them to go be the letter of the law with numbers than the asian kids will get in everywhere and there’d be lawsuits about that…...ohhh wait.

@pgillenw, who spake thusly “I feel it is true that we can not repay injustices of our fore fathers. Given that to be true we will forever be in debt for their sins.

But the problem as I see it is the Republicans have gone out of their way - with their gerrymandering and “Voter ID” efforts - to prove that the injustices of “our fore fathers” isn’t the pivotal issue.

Rather, it is the willingness…the eagerness...with which some seek to commit new injustices.

Walter D. Shutter, Jr.

March 18, 2013, 7:05 p.m.

This article could have used a fuller explanation of the (Texas) University top 10 program guaranteeing admission to the top ten per cent from each Texas High School.  Not all High Schools or their student bodies are equal in scolarship or aptitude for higher education. Hence, offering admission to the top ten per cent in each Texas High School is obviously not the same as offering admission to the top ten percent of all Texas High School students.  The lesson is clear:  If you are above average in intelligence and scholarchip and want to increase your chances of being accepted to the Texas flagship University, enroll in a high school where you will have a better chance of making it into the top ten percent of that High School’s graduates. In other words, through the magic of Mayflower moving, you can turn yourself from a small fish in a big pond into a big fish in a small pond.

This says it all:

“... Fisher did not particularly stand out. Court records show her grade point average (3.59) and SAT scores (1180 out of 1600) were good but not great for the highly selective flagship university. The school’s rejection rate that year for the remaining 841 openings was higher than the turn-down rate for students trying to get into Harvard.

As a result, university officials claim in court filings that even if Fisher received points for her race and every other personal achievement factor, the letter she received in the mail still would have said no.
It’s true that the university, for whatever reason, offered provisional admission to some students with lower test scores and grades than Fisher. Five of those students were black or Latino. Forty-two were white.

Neither Fisher nor Blum mentioned those 42 applicants in interviews. Nor did they acknowledge the 168 black and Latino students with grades as good as or better than Fisher’s who were also denied entry into the university that year.”

I think once the facts of this case shows UT to be extremely fair in its practices, Blum will be laughed out of the Supreme Court. Remember, the Affordable Care Act was held to be constitutional by Chief Justice Roberts last year. They may be conservative leaning, but they’re not stupid, either.

ibsteve2u, True there will always be injustices.

True—injustices will always be with us. Perhaps we should therefore focus on current injustices rather than trying to rectify past ones.

I think that most of us can agree that admission to college is largely arbitrary—what does it mean to “merit” admission to a given school?  Do some people merit education and knowledge more than others?  Did Mark Zuckerberg merit admission to Harvard?  Did he demonstrate particular merit while he was there?  How do we measure merit? SAT scores?  Admission essays for which applicants can find coaching on line, from HS advisors, and from personal tutors?  Grades that mean different things from different schools?

A professor of mine once said that people who want to learn will learn, regardless of what college they attend or whether they attend any college.  People who seek connections seek them at elite or “selective” schools. 

Higher education is mostly about hire education.  So, maybe we should settle for eliminating biases in college admissions by not asking for or crediting information about race, ethnic background, native language, sexual orientation, religion, or economic status in applications to “public” colleges and universities and those that receive any taxpayer funds or tax breaks from any level of government.

“The law, in its majestic equality, forbids the rich and the poor alike to sleep under bridges, to beg in the streets, and to steal bread.”

That’s really the kind of elimination of bias you’re talking about, Geri.

Our laws in the US don’t forbid rich and poor alike….Would that they did.  The rich steal our “bread” and beg in our legislatures daily.  Whom, after all, did the “bailout” favor? 

Not all Blacks, non-native English speakers, GLBTs, etc are poor or in particular need of favoritism.  Once The Law differentiates among classes of people, it departs from justice.  Think Nazis.  Think, “Too big to fail.” Think, “Too small to matter.” 

I don’t know whether Ms. Fisher’s whiteness or lack of any particular minority status played any part in her denial of admission.  But if it did, it shouldn’t have. 

If poverty alone prevents ardent seekers of education from receiving good educations, we need more scholarships and more realistic financial aid arrangements.  But we also might do well to differentiate good education from attending a “selective” or “elite” school.  These schools provide superior connections, not superior educations, and people with superior connections get into “elite” and “selective” schools. 

George Bush II didn’t get into Yale on any merit except the right name and connections.  That particular form of favoritism—favoring sons of wealthy, influential alums—most of us see as wrong.  Why don’t we also see favoritism based on other group attributes—poverty, race, ethnic group, sexuality, sex, religion, etc. as wrong also—at least in public colleges and universities supported directly or indirectly through taxes and tax advantages?

James M Fitzsimmons

March 19, 2013, 9:59 a.m.

Assuming this article reports the facts of the case accurately, the case should be dismissed in the court where it is presented. The discussion of affirmative action and its merits in 2013 based on an apparently frivolous lawsuit is not worth the effort. The issue is too important to be left to ideologues who do not place much emphasis on objective reality.

Daphne L… Yes, that is a typo. Thank you bringing it to my attention. We’re fixing it now.

Hi Walter D. Shutter, Jr. You are right that the Top 10 program does not mean the top 10 percent of students across the state gain entry into UT. Conservatives support the Top 10 because it is race-neutral on its face, but it works to provide diversity only because the the K-12 system in Texas remains de facto segregated decades after de jure segregation was outlawed.

This would be a moot point if all the highly recruited Black athletes decided to attend HBCUs and bring all that revenue with them.

I have followed this story since I lived in Texas. The simple fact of the matter is, she didn’t graduate in the top 10% of her class. She wasn’t even in the running for the limited number of seats offered up.

Now she’s taking advantage of the most conservative Supreme Court in recent history.

This is not about race, it’s about playing your card at the most opportunistic time and quietly laying the blame at the feet of “racism.”

the university’s Top 10 program — a mechanism that granted automatic admission to any teen who graduated in the upper 10 percent of his or her high school class

I do wonder that Blum and Fisher didn’t also sue on the basis of the University of Texas’ demonstrated and pernicious bigotry…their bias towards the selection of students who are both intelligent and hard-working.

I believe that a fellow Texan - George W. Bush - proved that neither intelligence nor a work ethic are required for success; it is only fair that all of Texas be entitled to join in the race to mediocrity.

Robert Hess: I live in a rural, low socioeconomic area of Northern California (very far “West”) and cannot go out in public without hearing racial comments, negative stereotypes or just outright bigotry.

As a recently retired high school teacher, I can also say it is not just grumpy, old, white men that are causing the verbal bigotry. It is rife in the youth of our community also. After all, the young often mimic their elders!
Like Blum, they seem to use the high achieving minorities to blame their failures on.

Merit has never been nor never will be the reason why most people achieve success in America, in most cases.  It’s all about connections and cronyism.  There are a few exceptions, but they are few and far between

White men have had affirmative action, since 1776—it’s about time, some other folks get it, too.

And our US Supreme Court consists of merely hired hands—nothing more, nothing less.  Too politicized.

1. How has crack and heroin drugs made its way to to black neighborhoods from foreign countries and across varying state, county, and city lines for the last 25 years? 

2. How do illegal guns, many of which are purchased with illegal drug money, get to black neighborhoods? 

3. What impact has this illegal economy and exploding black male incarceration rate over the past 25 years had on the quality of life of most black people?

4. To what degree do private prison construction and staffing companies benefit from the constant flow of these illegal drugs and guns benefit from the war on drugs? 

5. Where’s the affirmative action program to stop the stem the flow of drugs and guns to black neighborhoods?

It amazes me how this country so consistently returns to the mindset that giving rights to other people inherently takes rights (rather than privilege) away from the majority.  Society is not a zero-sum game, and if your corner of it is (like a limited number of seats at a school), then go somewhere else.

If you read primary historical sources, you’ll see that freeing the slaves would destroy white men everywhere.  Allowing Asians to become citizens would wipe us out, awash with weird unpronounceable drugs.  Giving women the right to vote would destroy politics.  Allowing the Irish, Italians, Mexicans, etc. into the country would tank the economy and destroy polite culture.  Letting criminals, mentally damaged, and other undesirable people have children was polluting the gene pool and condemning us to extinction.  Letting blacks vote and take jobs would destroy the economy (and we’d be awash in boring but cheap drugs).  Protecting animals from abuse and cruelty is a steady march to a world where children starve to death to protect chickens.

And don’t forget elitist tendencies.  Letting the average man buy stocks, allowing him to trade directly, allowing him to start his own company, or report news without an editor was going to destroy the economy and society, too.

You’d think civilization would have collapsed hundreds of times over, by this point, but it seems to make us stronger, last I checked.

It’s OK.  Black people can go to college, and even a few white kids can be kept from going to their dream college, and society will not collapse, and we white folks will not be exterminated by black kids with BFAs.

(rkb, this is the program that stops the drugs and guns, by the way.  Children of successful parents don’t generally join gangs.  And you don’t become successful by being blocked from opportunities to improve your life.  Most pro-integration politicians want to avoid that angle as crassly materialistic, rather than touchy-feelie, but it’s better than idiotic zero tolerance laws that just cost us in prison maintenance.)

But you know where there is a problem?  Demonizing “discrimination.”  We all discriminate, even spending time with friends and family over strangers.

Discrimination is fine, arguably even by race.  Discrimination to enforce a majority privilege at the expense of minorities is not.

Can anybody make the argument that Fisher was denied admission to oppress her?  Can anybody make the argument that society is imperiled because one aspiring lawyer had to choose a different school?  If she’s not good enough to get in somewhere else, why do I care she can’t get in here.

(Side note:  Why the heck would she want to be a lawyer!?  We certainly don’t have a shortage.  In fact, we have such a surplus, that some law schools have been creating law firms to do pro bono work, to see their alumni employed.)

Society is imperiled by failing to recognize that being born black comes with a disadvantage built into having fewer opportunities to meet powerful people.  Giving a small advantage, in the form of extra consideration, to people from such disadvantaged backgrounds that they can’t control, is sensible in the same way that it’s sensible to separate boxers by weight or—if we can avoid classifying it as sexism—to have separate leagues for men and women in professional sports where women perform less successfully.

I am, incidentally, deeply offended whenever Equal Opportunity-type laws are used vindictively, to deprive a white person service or advancement purely to “right the scales.”  But this case isn’t that.

The majority of people are average and below average, I don’t care what colour they are—and, one group has a disproportionate share of the pie, without having the abilities or capacities to be entitled to that share—period.

Our society is rooted in white supremacy and anyone that argues differently is either insincere or merely unaware.

One really can’t be bothered with that level of ignorance.

And no one cares about individuals being deeply offended.  We are talking about disparities between groups—this isn’t an individual exercise.

It’s called: white supremacy—which is a group based phenomenon.

Bottom line: if you got into a top 10 law school, no matter how you got in, the point is: you got out/with a degree.  Bottom line—end of story.

Blackmun.  Justice Harry Blackmun.  NOT Blackmum.

Where did Barack Obama go to law school and teach as well?  Why does President Obama identify himself as black when his mother was white and actively involved in his upbringing, while his father was black and mostly absent?  I don’t know the answers to these questions, but I want to say that they don’t matter.  What matters now is whether he is a good leader of the US.

He has consistently supported the use of drones without legal section.  He saved JP Morgan and other large financial institutions while allowing home “owners” of all races to lose their homes.  He has gotten “Obamacare” through Congress, but the major beneficiaries of this legislation seem to be private insurance companies.  To me, he seems to conduct business as usual in the US, no matter how he identifies himself. 

Identity politics seems to me to be bad politics.  But, I must confess, I don’t know what sort of politics would be better.  I suspect that the only alternative is equal evaluation of all based on individual qualities, not group membership or identification.

I hope you didn’t think you were being subtle, geri.

Hoping to be clear, not subtle.

@geri…lollll…well, then I find it surprising - if your wish indeed was “to be clear” - that you put so much distance between

Why does President Obama identify himself as black when his mother was white and actively involved in his upbringing, while his father was black and mostly absent?


Identity politics seems to me to be bad politics.

Why does Obama identify as black and not white—does he look white?  LOL

Everything black folks do is a response/reaction to white supremacy—period.


I don’t understand your response but would like to.  I didn’t mean to provoke lols.  I do, however, very much want to see earnest responses to issues and questions I truly find difficult.

Although to answer the question

Why does President Obama identify himself as black when his mother was white and actively involved in his upbringing, while his father was black and mostly absent?

the answer, I believe, is a part of the racist heritage of white America…particularly southern America…that America where the offspring of a white parent and a person of color might be labeled “quadroon”, “octaroon”, or some other concocted name for “not white”...

But never “white”.

It’s a simple question: does Obama look white?  Yes or No?

Take you for instance, Geri, I bet you have a lot of black in your DNA/genes, but you identify white—why do you do that?

she’s got “man hands”

“Why does President Obama identify himself as black when his mother was white and actively involved in his upbringing, while his father was black and mostly absent?”

Perhaps at least part of that answer is how he was received and treated by those he encountered throughout his life.  I’ve never heard anyone make a racist “cracker” joke when referring this President but I’ve heard and read more racist barbs thrown at him for being half-black than I care to remember.

“she’s got man hands” (I don’t know what this means)

“ you have a lot of black in your DNA/genes”(I bet I do, too).

So much anxiety/anger, it seems, coming from uncertainty about what group identities may be attached to me. Or maybe about which group identities I might claim for myself. 

“Geri” is, after all, a sexually ambiguous name.  For that reason, I’ve spent a fair portion of my life feeling embarrassed by it.

Back in the ‘30s when my father was a teen living near the NJ shore, he was often chased off beaches for being black.

One of my favorite books (I liked the movie, also) is The Human Stain, by Philip Roth.  It’s a novel about varieties of identity politics as they play themselves out in a small liberal arts college and the town surrounding it.  But the story focuses on individual lives inalterably and tragically changed by identity politics and the deceits/conceits such politics encourage.

Another favorite of mine is a movie in which a homosexual identifies himself as a Jew while in a concentration camp because he has heard that homosexuals are treated even worse than Jews.  Unfortunately I recall none of the particulars of the movie—like title, producer, stars.  Maybe someone could help me here.  One thing I definitely am is aging and feeling its effects on memory.  But then again, we are all aging—the only available alternative isn’t particularly appealing—and everyone’s memories change throughout life.

Ernesto Regalado

March 21, 2013, 4:49 p.m.

“It’s true that the university, for whatever reason, offered provisional admission to some students with lower test scores and grades than Fisher. Five of those students were black or Latino. Forty-two were white.”

How the hell did this make it to the Supreme Court?

Perhaps Fisher’s case made it to the Supreme Court because it can’t be resolved by statistics.  Maybe the question is whether race or belonging to any group that is id’ed as having suffered discrimination in the past should play any part in admission to a tax-supported university today.  The question is, just perhaps, about principles rather than percentages. 

Suppose that a majority of those students admitted over Fisher turned out to be male.  Would she then have a more viable case on the basis of sexual discrimination than on the basis of racial discrimination? 

Affirmative action seems to ask whether an individual can make a credible claim to belonging to a group that has been discriminated against historically or that is currently suffering from discrimination as revealed by statistics.  If so, affirmative action seems to mandate not equal treatment under the law, but special consideration—privilege—under the law.
Can any nation or political system favor certain groups without harming other groups?  Extending the rights of one group doesn’t necessarily diminish the rights of another, although it may diminish their privileges. But, basing a right or privilege on membership in a group seems (to my mind) to be the very essence of discrimination.  Thus, to me, Affirmative action seems basically a form of discrimination, no matter how well-meaning its authors may have been.  And it seems a matter to which our Supreme Court should attend. 

That having been said, I don’t know whether Fisher’s case is a particularly good case from which to launch fundamental questions about the Constitutional acceptability of Affirmative action measures. 

But here’s a personal story I find both comical and relevant.  Once upon a time, I revealed to OSHA (Occupational Safety and Health Administration) safety and health violations where I worked.  I had brought my concerns first through “proper channels” to my superiors, who took no action after many months. 

OSHA, after a number of rather strange missteps, found my employers to be in violation of OSHA requirements and imposed on them a fine as well as a demand for immediate and specific abatements of hazardous conditions.  I, meanwhile, found myself being singled out for steady and disturbing harassment at work.

I reported the harassment to OSHA, an agency which promises to protect “whistleblowers” against such harassment.  OSHA recommended that I take my case to the NYS Department of Human Rights.  I did so and promptly received a multipage questionnaire asking me to indicate on what basis or bases I was being harassed.  The questionnaire gave me a choice among harassment based on age, sex, race, sexual preference, religion, citizenship status, and housing arrangements.

The one form of harassment that I actually wished to claim—harassment due to revealing illegal and unsafe conditions to a regulatory agency—was not an option. Bottom line—I could proceed with the case if and only if I could credibly claim that I had been harassed on the basis of belonging to “a protected group.” 

Well, I could honestly claim belonging to more than one protected group, but I couldn’t honestly claim that belonging to any protected group motivated the harassment.  I didn’t pursue the case, and soon found the harassment unbearable. I parted ways with my employers after having worked for them for 10 years. 

Soon after my departure, I learned that OSHA had quietly dismissed the fine and abatement orders they had imposed on my former employer.  OSHA did so by executive action involving a high level OSHA functionary and a high level manager from my employer.  No employees affected by adverse working conditions even knew of the meeting, much less were invited to participate or informed of its outcome.  To drop the sanctions against the employer, OSHA execs had to dismiss the findings of the OSHA team that had actually inspected the worksite and actually witnessed ongoing violations.

I call my tale comical because the blunders and coverups of blunders perpetrated by bureaucracies are often quite funny—even hysterical—and many moves in the bureaucratic game in which I was caught up were worthy of vaudeville routines.  I’m thinking just now of the song, “Spring time for Hitler and Germany” from the movie The Producers by Mel Brooks and Gene Wilder. 

My tale seems relevant to the Fisher case because they both come down to decisions made by bureaucratic organizations following their own bureaucratic rules.  Yet, many of us continue as citizens to desperately desire that bureaucratic decisions will magically affirm our individual senses of self and recognize the particularity of our suffering by impersonally assigning us to an appropriate group.

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