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Podcast: The Facts Behind the Supreme Court’s Affirmative Action Case

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Attorney Bert Rein speaks to the media while standing with plaintiff Abigail Noel Fisher after the U.S. Supreme Court heard arguments in her case on Oct. 10, 2012. (Mark Wilson/Getty Images)

Abigail Fisher, the 23-year-old plaintiff in the affirmative action case currently before the Supreme Court, has been portrayed as the textbook example of reverse discrimination. She was a solid student, participated in extracurriculars, and claims to have been rejected from the University of Texas at Austin for nothing more than the fact that she's white.

However, ProPublica's Nikole Hannah-Jones took a closer look at the documents in the case, and found that race had little, if anything at all, to do with the university's decision to deny Fisher admission.

She sat down with ProPublica's editor-in-chief Steve Engelberg to discuss her investigation; how backers of Fisher's case seek to make it a referendum on the 14th Amendment itself; and how, for all her trouble, Fisher is only seeking a grand total of $100 in damages.

You can read Hannah-Jones's investigation on our website. You can also listen to this podcast on iTunes and Stitcher.

I’m not a fan of quotas either but in her case I haven’t read anything that would lead me to believe that quotas played a part in her not getting into UT.

She didn’t graduate high school in the top 10% of her class, there were minority students with better records than her that didn’t get in also, and she was given the opportunity to get into UT if she did a year at a Texas college and maintained a 3.2 avg. She instead went out of state to LSU which is also a fine school. Where is the discrimination or the damage to her?

Racism is rAmpant

Mr. Wagner:  I don’t necessarily disagree with your comment, but what does it have to do with this case?  BrianH is dead on.

I don’t believe in quotas either and hope to see a fair outcome to this case whether they win it or not. Justice Roberts wrote an opinion a few years ago saying - to paraphrase - the way to stop discriminating is to stop discriminating, Ergo, the way to be fair is to be fair.  Race/color/ethnicity/age should not play a factor in whether a bright student is accepted to a university.  The top schools are very competitive and the use of any demographic data to make admissions decisions is unfair and injects favoritism into the mix.  Justice should not allow her blindfold to slip.

The color of a person’s skin should not be a consideration for college admissions.  The race question itself should not be allowed to be asked.

Ms. Cho, the term “reverse discrimination” is nonsensical. Discrimination is discrimination.

Russ, it’s an informal term that lets us easily (no pun intended) discriminate between racism for the malicious purpose of oppressing a minority and presumably well-intended but ill-advised racism meant to give the oppressed a chance.  There is, after all, a huge difference between the two.  Removing a favored group’s privilege is not in the same class as preventing a group from participating in society.

That said, I’m also in the boat of not seeing a problem with this case.  I’m sure Fisher’s a wonderful girl, but nobody promises that you’ll get into your dream school.  We already have plenty of lawyers (so many that some law schools are opening firms to employ them), so even turning one away entirely isn’t going to upend society.  And her record isn’t exactly the sort of perfection that schools fight to have.

When people talk about younger generations acting self-entitled, this is pretty much exactly what they mean.  The only way anybody could possibly pass on accepting her must be her skin color, not because there’s pretty much an infinite number of qualified candidates.

I also have to agree with the general sentiment that, regardless of what we’re trying to fix or engineer, quota-based systems are idiotic.  Give the minority students a second look, sure, since it’s harder to see someone’s potential with a disadvantaged background.  But doing it with a goal is inherently offensive and prone to creating worthless or even harmful results.

Just wanted to let you know that I’m an 80 year old student at a school in NYC,QUEST,  that practices peer learning—-we’re the teachers, and I’m doing a presentation on Race in America on April 2nd. I had info on Ms Fisher and then read your story about Blum and his group and switched the whole point of view.
With guys like Blum & LaPierre,we don’t need enemies in this country. We grow our own beauties.

Amen, brother.

Sorry John, I can’t follow that logic.  The “presumably well-intended but ill-advised racism meant to give the oppressed a chance” is called affirmative action and by design it is discriminatory.  Discrimination is still discrimination and it comes in multiple forms.

I completely agree that this claim is insidious; however, no one should get any preference based on their ethnicity - that is called discrimination.

Here’s the question, though, Russ, and what I’m internally trying to resolve:  Isn’t it also discrimination to say, “well, we’re aware that your parents, grandparents, and great-grandparents were all but forced to live terrible lives with no chance for advancement, so you’ll only have the same chance as the rich kid whose parents hired the best private tutors and supplemental programs”?  I don’t see how it’s egalitarian or freeing to tell someone that they can only overcome their disadvantages if they’re overwhelmingly better than the privileged.

Really.  We’re talking about an ethnic group that was literally barred from ownership for centuries, oppressed for another century (or more) on a systemic level, and targeted economically for the worst goods and services (including unhealthy foods, gangs, drugs, and illegal weapons).  That’s not to mention what amounts to a perpetual public relations campaign portraying them all as thuggish, lazy, or stupid throughout media.  Is it appropriate to assume that an eighteen-year-old black kid should overcome all of that AND out-perform his fellow students whose idea of adversity is bad cell service?

I also think the word “discriminate” gets a bad rap.  When you refuse to eat at a dirty restaurant, give money to someone who reeks of whiskey, or let a violent criminal stay at your house for a few days, you’re discriminating.  You assume the outcome will be bad, so you reject that path.  The intent and result of discrimination is, I think, important.  Discriminating maliciously to exclude is different than doing so to improve likely outcomes.

Again, quotas are stupid.  But taking someone’s situation into account when evaluating potential (which is what an admissions department should be evaluating)...well, I’ll say that a disproportionate number of the best engineers, writers, educators, and managers I’ve worked with have been black, Hispanic, and/or women, usually from bad backgrounds.  They wouldn’t have gotten that far, though, if they weren’t given a chance.

A good program capitalizes on that.  I bring that up to point out that I don’t mean we just push people through because of the color of their skin.  I mean we need to evaluate someone’s history in the context of their situation, and black people largely sit in a particularly difficult context.

Of course, getting people to do this is another matter.  That’s where you get asinine ideas like quotas.  It’s not like you can take a biased person and ask them to not be biased.  You can make them prove that they’re accepting and retaining people they hate, though, ineffective as that may be.

(The obvious objection is that disadvantaged white kids deserve that, too, of course, and I fully agree.  But I happen to have been a disadvantaged white kid, and people bent over backwards to help me out, my entire life.  So I’m guessing we already pretty much know how to get them help.)

Discrimination is discrimination.  If we are to award priority due to prior hardships every Native American child would get a free education and top priority in all jobs, contracts and other government programs. 

The only fair way for quotas to work in an academic setting is by income of parents (GPA being equal).  Even the Federal Reserve admits that the income disparity in America is creating a two class society, the 10% with advantages and the 90% with disadvantages.  I think we are beyind skin color arguements on the whole.  Sure there will always be discrimination in people, but at least our government should put color behind it and get on with rebuilding a strong America by educating all those who qualify, and helping those who are economically disadvantaged to get an equal education (remembering that not all degrees are equal; a degree from Harvard is worth more than the same degree from Podunk). 

While this case may be a little ‘light’, it does serve the purpose.  It was not long ago (1988) that a counselor at a good university told me that if I was a black single mother I could go to school for free, but since I was an older white guy (returning student) I would have to pay full price.  I’m still paying off the cost of my BA and MA.  My daughter, a 2007 graduate (Magna cum Laude) of Ohio State, entered college with a 4.0 GPA, had to pay full price and is buried in debt from that education. 

The point is that it is economic status, not skin color, that limits opportunity in this country.  We will never move past racial discrimination until the government becomes color blind.  Education is the key to any elevation in economic class, and we are not doing well at overcoming the advantages that winning the Lucky Sperm Contest give.

It seems like in this arguement there’s a beating around the bush of the specific problem. The problem was white supremacy… which was violently imposed on blacks and became so imbedded into the culture that even Christian churches supported it. How embedded is it… the Mormom church finally admitted (in 2013) that it made up an entire theology on race based on it’s founding society’s racist propoganda.

We often talk about racism as how it affects blacks because by the nature of white supremacy, it imposed the highest and sadly most enduring price on them as they were treated as the bottom of a strict social order. Peacefully unwinding that legacy is the national goal, if America is going to live up to it’s founding documents (and 13-15 amendments that came out of bloodshed) is to ensure that being born of a certain race is not limiting (or enhancing of opportunities).

It might suck to be an non-exceptional white as the promise that hard work is enough to succeed is proven to be a lie. A meritocracy would see productivity (which mixes effort, training and ability) as decisive and human dignity as universal.

Every survey is showing that massive remnants of white supremacy still exist. A black sounding name is a huge modifer to getting a job interview (ability held equal). A white with a criminal record earns trust more easily than a non-white with a clean record. Banks targeted blacks of equal credit worthiness for higher rates and/or riskier loans products.

In as far as the middle-aged person who complains about the single mother getting college grants more easily… you should write your congressman and support higher taxes to pay for job training grants including higher education support for people in the workforce. As it stands, higher education government support is given to young people (whether black, white, male or female but somewhat according to their parents financial needs) before they first enter the full-time workforce. There would be alot of social problems solved if more early mothers and fathers were still able to reach their full producitivity and enter the workforce.

This case proves this woman suffered no disportionate impact to being white. The 47 students with worse performance who were accepted made it into UT were whiter than the university as a whole. It actually shows that there is a subjective decision to let people of various ability (from above average to exceptional) and even with affirmative action, the university is not giving any net favortism to lower ability minorities over higher ability whites.

While I agree that this case is thin, not the best to use as an example, I maintain that it is sufficient to prove the point.  If we want to be a colorblind society it must start with the government.  Just as the military outlawed discrimination, the rest of the government must outlaw discrimination in all matters not just change the names on the door.

Racism, fear of the ‘other’, will never be wiped out.  It is in our genitic makeup to fear ‘other’.  But perpetuating that fear through preferential treatment of one race is not going to help anything, it only fosters more resentment and hatred.  Any consideration based on color is prejudicial. 

Please do not try to convince me, or anyone, that being brought here as a slave is in any way equilivant to having your land stolen, being decimated by disease, having the few survivors hearded into reservations, having your children taken from you to be raised by white christians who forbade them to speak their language, and continued 2nd class citizenship.  Slaves were at least considered valuable property.  The “Indians” were considered an obstical in the path of forming a new country.  Only an Easterener would think that there is no lingering hatred for Native People.  The only reason most people do not realize the continued persecution of, and discrimination against, Native People is because they are so small a population that most people do not even know a Native Person.  Between 1492 (when Columbus first landed in the Americas) and 1776 (when America came into being) over 90% of the Native People had died or been enslaved.  After 1776 the Native People were given worhtless land to try to survive on (until the whites decided they wanted it, then the Natives were given other worhtless land).  Every treaty was broken.  And this all continues up to today.  There are no living people who can remember being a slave but there are a lot of people alive today who were taken from their parents and tribes forceably, forbidden to speak their (heathen) language while they were “saved” by being educated in White Christian schools which they were forbidden to leave.  This happened up to the 1960’s in America.

Discrimination is discrimination, and setting up ‘special’ classes that get an advantage over other classes based on race is Discrimination.  At some point we have to say “Debt Paid” no matter how well or poorly the class is currently doing.  Understanding that we will never change what is in the genes, we have to end discrimination once and for all.

Robert Wolfram

April 1, 2013, 5:59 a.m.

Noel simply did not make the grade…a hard worker but not as hard as others…move on and realize the world is highly competitive…perhaps a different combination of high school activities or a different college..but understand, Noel is average…good luck but whining with well-paid lawyers from the far-right just shows how the elite use the pawns.  Just sayin’ :-)

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