Journalism in the Public Interest

What Abigail Fisher’s Affirmative Action Case Was 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.

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Roger Clegg, Ctr for Equal Opportunity

March 22, 2013, 10:04 a.m.

What a dishonest article. (1) The question of whether a particular applicant would have gotten in “but for” her race has not been part of Abigail Fisher’s case because this issue is not resolved at this point in the lawsuit. That is, it is relevant to the appropriate remedy, not to the issue whether the use of racial preferences was lawful. (2) There is nothing in the Fourteenth Amendment or Title VI of the 1964 Civil Rights Act that says the amount of protection you receive from discrimination depends on your skin color or that discrimination is justified if it leads to more “diversity”—and that is the fundamental issue here. (3) Some who supported segregation no doubt oppose racial preferences, but there are many, many people who opposed both—not to mention a lot of people who weren’t alive during the Jim Crow era and who therefore cannot be called hypocritical for opposing racial preferences now.


March 22, 2013, 1:32 p.m.

For those who have made it to this comment, the preceding comment’s origination from “The Center for Equal Opportunity” makes perusing the SourceWatch entry on that entity a must:

Myself, I am amused at the “lawyering-up” of the comment; the attempt to define the lawsuit as an action applying only to a narrow window in the law.  The tactic always reminds me of the game Jenga

except the goal is to topple the tower…to find the one weak link that can be used to destroy all equal opportunity laws.

(A.K.A. yucky lawyer stuff designed to exclude justice by nitpicking.)

geri henze

March 22, 2013, 2:19 p.m.

Thank you for the Source Watch info.

I must agree with you that Mr. Clegg’s post sounds like “yucky lawyer stuff.”  Seems to obscure rather than clarify issues.  Sometimes I think I would be a happier citizen, one more respectful of our laws, if I could but understand them and discern the principles informing them without the aid of tons of lawyers.

It often occurs to me that citizens/residents of the US might agree on many more issues, were it not for the language of lawyers.


March 22, 2013, 3:18 p.m.

Let me preface this by saying that I’m not American so I’m not 100% sure how it works.

I would love to run a double blind study and 1) keep race/ethnicity off of admissions, and 2) include it, while keeping all other qualifications identical. Then, compare the results of this manipulated independent variable. That might be more useful than a Supreme Court ruling.

Of course ethnicity is a driving force of social interaction. It always will be unless we actively discourage this type of racism at a young age. We are just wired that way. We are wired to be an *US* and for you to be a *THEM*, this doesn’t necessarily have to include ethnicity, but ethnicity is just the most obvious thing to discriminate against. It’s external, visible.

We can see examples of this in most elementary schools where this kind of discrimination is based on socio-economic status and how ‘cool’ you look. Same principle. We just learn to hide it as adults.

On the other side of things, perhaps in order to combat the *we*/*them* mentality and to keep racism from being passed on to youth, it would be ideal to have a mix of people studying together. Just to get everyone used to everyone. You know, just in case certain students come from segregated areas of your country and have little experience dealing with individuals of different ethnicities.

Admitting a student because they are of a certain ethnicity is pretty racist after all. I mean, firstly, you’ve got to be assuming things about those students based solely on that ethnicity. And that’s intellectually and morally dishonest. Just because someone is White, Asian, African, or Aboriginal, etc., doesn’t mean that they’re their ethnicity’s stereotype. 

Socio-economic status, single vs double parent household, high-school funding… all of these when taken with individual achievements should weigh more on entrance/admission than skin colour.

That said, it’s pretty obvious that I’m not sure which verdict I’m hoping for.


March 22, 2013, 3:26 p.m.

Let’s see: Dick Cheney failed out of Yale, twice.  And only got in, in the first place because of a connection with a person in the military.  Then, after failing out of Yale, twice, he goes to the University of Wisconsin. 

Only to later, hook up, literally with Donald Rumsfeld, to serve in the Ford administration, where Ford only became vice president to a corrupt Richard Nixon, because Spiro Agnew was indicted and convicted for a felony.

Later, after serving Ford, Dick Cheney the failed Yale student, and Rumsfeld, decide with C minus student Bush, to invade Iraq for some non existent WMD’s.

I wonder how these men got this far in life, given their academic records and their repeated failings?  Clearly, not because they are white men, huh?


March 22, 2013, 3:48 p.m.

6 of the 500 CEOS on the Fortune 500 list are black.. Yes indeed it is bad luck to be born white now a days- by the time our white babies are over 20, there might be like 12 or 13 black people on the list taking the spot that could have belonged to a white man…

Life sucks so much.


March 22, 2013, 3:49 p.m.


I have no doubt that their race played a role in their “success”.

I was not trying to say that Affirmative Action is bad.

I was just trying to point out that having a very arbitrary factor, such as ethnicity, become the deciding factor for academic admissions is, for the most part, erroneous and detrimental to meritocracy.

We don’t have enough diverse data to compare with this example you have given, and every President that America has elected has been white, save the current one. And even then, I would never claim that President Obama is more deserving of the Presidency because he is half-black. His ethnicity shouldn’t have anything to do with it.

Affirmative Action should exist in order to level the playing field for entry into adulthood and this fancy, new-age Capitalism. It should not be used to give unwarranted advantages to everyone who’s ethnicity has been oppressed. Not that this is the case. The resulting difference between what you have achieved and the difficulty of your achievements based on other factors, such as socio-economic status, volunteer work, skill, etc., might be more representative than ethnicity.

Academic Admissions Offices must have some fancy statistics they do to weigh the achievements of a certain individual in accordance with their opportunity to achieve. They must.

That is the point I am trying to make.

And thank you. I enjoy the discourse.


March 22, 2013, 4:07 p.m.

Clearly, affirmative action has worked for white men e.g., Bush and Cheney.


March 22, 2013, 4:09 p.m.

How does a twice failed Yale student become vice president?  Answer: affirmative action.


March 22, 2013, 4:19 p.m.

Everyone else has to work hard and get A’s.  But if you are a white guy, all you have to do is know another white guy, to become vice president.

That is the take away from The World According to Dick Cheney, airing now on Showtime.


March 22, 2013, 4:22 p.m.

White guys have had affirmative action since 1776. Now, others want it, too, and they whine—talk about a bunch of crybabies.

Geez - snap out of it.  Stiff upper lip, for goodness sake.


March 22, 2013, 7:03 p.m.

Clearly, you guys aren’t materially successful, if you don’t know how climbing the ladder to success in America works—go talk to Dick Cheney.


March 23, 2013, 3:35 p.m.

lolll…you focus on Cheney too much, Kat.  George W. Bush’s academic reputation

also provides a historical lesson on the effectiveness of “the good old boy” network/“networking”.  Likewise, the deleterious economic, diplomatic, and social consequences of established peer groups/elites prioritizing their own power and rate of wealth accumulation over the interests of the nation and our people is also now a matter of history…all too recent history. 

Immorality on the scale that we have seen these last four decades - the willful sacrifice of the many in America to benefit the few - mandates the politics of exclusion.  Such peer groups/elites require a common ethical and moral perspective; rather, all members must lack inhibitory moral and ethical restraints.  Otherwise “leaks” of the Romney “47%” variety would be commonplace and their ability to mislead America and/or other large human enterprises would vanish.

Just as an aside, it is curious that Harvard and Yale seem to be able to coin such individuals as if they were the U.S. Mint cranking out bad pennies.  I suppose it would make a good doctoral thesis for a sociologist or a medical student focused upon psychology:  What is it about Harvard and Yale that strips the moral and ethical inhibitions away from so many of their graduates?  Or do they come in that way, and Harvard and Yale merely amplify the predator in humans - social animals - that lack the empathy to be social animals?

Personally, I suspect it is a teaching common to the business schools at all large/prestigious universities:  Anything done in the name of profit/self-enrichment is “OK”.  And I do mean anything.


March 23, 2013, 5:12 p.m.

I recently watch The World According to Dick Cheney on Showtime—a prime example of how to become successful in America—know a white man.

All this other stuff you guys discuss about obtaining material success in America, like good grades and going to good schools, is hogwash.

Michael Taylor

March 24, 2013, 4:25 p.m.

This passage says it all.

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

She has no case.

Nabil Al-Murabit

March 25, 2013, 3:40 a.m.

Hmm, I wonder how many truly deserving minorities didn’t get into Yale because of the spots that are taken due to legacy admissions, which is nothing more than an Affirmative Action program for the slacker kids of rich, Anglo-Saxons.  I mean Bush got into Yale, while having a C- GPA and an SAT score of 1150. Had he been Black, the only way he would’ve gotten into Yale would’ve been to apply for the custodian position


March 25, 2013, 10:48 a.m.

People who argue against affirmative action for black and brown folks are in denial about the adverse impact of white supremacy and the fact that white folks have had affirmative action from day one and continuing to the present.

Bill Duroe

March 29, 2013, 4:46 p.m.

What all such articles overlook is the tragic conceptual mistake made 50 years ago by Civil Rights leaders - make family economic status the measure of remedy - not race. Economic status rather than race would have fostered the political alliance between poor whites and racial minorities.

Look very closely; the economic measure would have precluded the GOP’s Southern Strategy and the alienation of the “white working class” from the Democratic Party. It may even have made possible a reasoned assessment of Vietnam and the Cold War.

Bill Duroe


April 2, 2013, 8:59 p.m.

Perhaps some should bring a lawsuit against all the universities who give preference to “legacies”, children of alumni, and to children of wealthy individuals who have either made large donations to get their children in or are anticipated by the institutions to be large future donors.  (Think G. W. Bush and his renowned terrible high school grades and his attendance at Yale.) There is definitely discrimination in favor of these privileged offspring.  Yet, I don’t here anyone claiming they didn’t get into the institution of their choice because their spot when to some low-achieving, rich white kid.  Maybe the ones who didn’t make the cut feel the wealthy ones are, indeed, more deserving.  The wealthy ones certainly seem to think so.

Nishant S

April 5, 2013, 10:54 p.m.

All I know is it sucks to be an Asian/Indian!

You still get the discrimination but none of the educational helping hands the other minorities get.

That’s what we get for being overachievers :(


April 6, 2013, 12:05 p.m.

Two things strike me as I continue to follow this conversation.

First, policies like Affirmative Action that encourage us to be aware of racial and ethnic background in distributing education, jobs, benefits, and justice, set (poor) group against (poor) group. 

Second, sometimes it seems as if we are all focused on claiming victimhood and on demonstrating greater victimhood than the next person.


April 7, 2013, 12:38 p.m.

@geri:  Yours is rather an insidious attack upon affirmative action…underhanded, even.

For it to hold water, however, you’d have to demonstrate that America has no ethnic groups who are victimized by bigotry and further no history of bigotry that has resulted in entire ethnic groups being held back…being walled off from the opportunities available to America’s majority race and ethnic groups.

Blacks, Asians, Native Americans….they’ve got 300 years of American history screaming that those ethnic groups have indeed earned their “victimhood [sic]”.


April 7, 2013, 3:26 p.m.

I was sitting here pondering the twisted logic it takes to admit the effects of discrimination…that admission wrapped in “set (poor) group against (poor) group”...

And then to further wrap that admission in an invidious attack on the attempt to both eradicate the causative bigotry and rebalance the access to opportunity and so eliminate the consequences - consequences, again, readily admitted to in the phrase “(poor) groups[s]” - of centuries of bigotry by ensuring that those of persecuted races intermingle with their persecutors, thus causing all groups to become familiar with and accepting of all other groups through the simple process of shredding the isolation - the barriers between communities - that allows the lies irreconcilable “difference” that underlie bigotry to be both maintained and flourish…

The key factor…the key weakness in the anti-affirmative action arguments…is those who argue against affirmative action display their awareness that America’s “(poor) group(s)” can be distinguished not only by their economic plight but also by the fact that they differ in race or ethnicity from America’s as yet-majority, as yet-dominant race.  Yet they seek to ensure that those “(poor) group[s]” remain just that. 

Twisted logic, indeed…the best analogy I can immediately think of is admitting that the school is on fire while insisting that calling the fire department would just result in more children becoming aware of the fire and so resenting those who have more opportunity to flee the fire…and besides - the unspoken argument - calling the fire department would reduce the fire department’s ability to respond should the mansions of those who have already graduated catch fire…

And so - rather than address the problem - it would be best to accept the status quo and let the children burn.  After all, many of them belong to “(poor) groups[s]”...


April 7, 2013, 4:30 p.m.


I didn’t intend to be invidious or underhanded in my questioning of Affirmative Action. I have my doubts about it. 

On the other hand, I don’t question that racial and ethnic minorities, particularly people our society considers black, have suffered terrible oppression in the US….as have homosexuals, women, single parents, and a host of other groups.  As I see it, just about anyone who is not white, not male, not heterosexual, not married-with-kids, and/or not Christian has been and continues to be subject to bias in the US.

But laws cannot whisk away biases.  In fact, the most hurtful biases in US history have been those inshrined by laws.  Laws at one time supported slavery, defined who should be considered “Negro,” excluded women from voting, outlawed interracial marriage, favored segregation by race, considered physical violence against wives the prerogative of husbands, and required US citizens of Japanese descent to live in concentration camps.

Laws can only remove legal barriers, they cannot eliminate bias or prejudice among humans.  To my mind, Affirmative Action laws and policies perpetuate biases by
1. Legalizing certain kinds of discrimination based on group membership.
2. Pitting group against group.
3. Diverting attention from the obscene growth of economic inequality in the US.
4. Suggesting that blacks, women, etc. cannot compete intellectually, economically, and politically on a level playing field.
5. Encouraging individuals to seek favored status on the basis of victimhood.  That is, to define themselves as powerless victims rather than as effective liberators.


April 7, 2013, 8:34 p.m.

I’ve just saw “Moyers & Co.” on PBS.  What might an “affirmative action in the media law” say about this program, which bore the title, “MLK’s Dream of Economic Justice.”

The host, Bill Moyers, is a white-haired, white man.  Moyers’ guests consisted of 2 black men and 1 white man.  James Cone, one of the black guests, is a theologian.  Taylor Branch, the white guest, is an historian.  The other guest,  a black man, is a poet.

Where are the women of any race?  Where are the poor people of any race?  (virutally all of the guests came from middle-class backgrounds, and, based on income and profession, all remained in the middle class throughout their lives to date).

Fact:  according to statistics from the US Census bureau, more white people fall below the poverty level in the US than blacks, Hispanics, Asians, and Pacific Islanders combined.

Fact:  The poverty rate among Black women was over 25.6%.  The rate of poverty among Black men was 22.3%

Again, I ask, “Why were no women of any race invited to a discussion of MLK and poverty?  Why were no poor people invited to the discussion? 

AND, I ask, “What sort of affirmative action law might you propose to rectify the situation?”


April 7, 2013, 8:35 p.m.

I just saw “Moyers & Co.” on PBS.  What might an “affirmative action in the media law” say about this program, which bore the title, “MLK’s Dream of Economic Justice.”

The host, Bill Moyers, is a white-haired, white man.  Moyers’ guests consisted of 2 black men and 1 white man.  James Cone, one of the black guests, is a theologian.  Taylor Branch, the white guest, is an historian.  The other guest,  a black man, is a poet.

Where are the women of any race?  Where are the poor people of any race?  (virutally all of the guests came from middle-class backgrounds, and, based on income and profession, all remained in the middle class throughout their lives to date).

Fact:  according to statistics from the US Census bureau, more white people fall below the poverty level in the US than blacks, Hispanics, Asians, and Pacific Islanders combined.

Fact:  The poverty rate among Black women was over 25.6%.  The rate of poverty among Black men was 22.3%

Again, I ask, “Why were no women of any race invited to a discussion of MLK and poverty?  Why were no poor people invited to the discussion? 

AND, I ask, “What sort of affirmative action law might you propose to rectify the situation?”


April 7, 2013, 10:10 p.m.

Kat, you’re brilliant.

You all keep mentioning this ‘merit, merit’ thing, I do not think it means what you think it means. Seriously, what is merit? Test scores you got cause mommy and daddy had enough money or lived in the right zoning district allowing you to attend good schools? Or maybe the test scores you cause mommy and daddy donated non-disabled genetic material, fed you good enough food, gave you some sort of shelter etc to allow you to focus on your studies and become ‘hardworking’?

Really, what is merit? This guy Hayek once said, “there is, of course, no greater merit nor any greater injustice involved in some people being born to wealthy parents, than there is in others being born to kind or intelligent parents”. And this other guy Rawls also said, , “we do not deserve…our place in the distribution of native endowments. This statement is meant as a moral truism. Who would deny it? Do people really think that they (morally) deserved to be born more gifted than others? Do they think that they (morally) deserved to be born a man rather than a woman, or vice versa?”

So someone explain, what is merit? I’ll tell you. I agree with Kat, let’s be 100 people- most of us, you me, that guy over there are average. Our mother was average, our father was average and our offspring is probably/will probably be average. There’s perhaps .001% (don’t quibble me on the stats folks) of the human species that has outstanding capacity for genius- like they were unraveling quantum physics and speaking 10 languages at 6 months old while hand-gliding over Mount Kilamanjaro kind of genius.

The rest of us, well we got where we are through access and opportunity. White Americans have been the beneficiaries of that access and opportunity for centuries in this great land called USA to the deliberate, systematic exclusion of everyone else. The success of White Americans stemmed and stems from this access- connections, networks, family, schools, skin color, you name it that has repercussions for everyone else in 2013. Now is this fair?  Why and Why not? This is the real issue at hand when we talk about affirmative action. Harping on ‘merit’ is chasing after the wrong rabbit, Alice.


April 7, 2013, 10:52 p.m.

I wish participants in this discussion could focus more on common ground and less on differences. 

Can we agree on anything?


April 8, 2013, 12:05 a.m.

The whole point is ensuring that everybody can access common ground - rather than the historical approach of walling “some” off.


April 8, 2013, 9:43 a.m.

There is no common ground, because we live in a society rooted in white supremacy and white folks keep trying to demonize, consciously and unconsciously, black and brown folks.

Remember, most white folks are no smarter than most black and brown folks.  You can’t demonize us, without resistance—push back.


April 8, 2013, 9:46 a.m.

The end of the story is that white folks have had affirmative action since 1776.  That’s the end of the story.  However, most white folks aren’t even smart and/or honest enough to grasp this concept.


April 8, 2013, 1:04 p.m.

“White folk” haven’t had affirmative action since 1776.  Perhaps white men have, but women in the US did not win the right to vote in federal elections until 1920, 52 years after the 14th amendment was ratified.

Try using a finer brush as you paint your conception of the good and the evil in the US. If you want, you’ll still be able to portray yourself as a helpless victim of other people.


April 8, 2013, 1:15 p.m.

Hmmm…somebody’s carefully - for the purposes of being politic - repressed “true feelings” are on the verge of bursting forth.


April 8, 2013, 1:18 p.m.

Geri, is so offended. 

The biggest victim card that has been played to the point of PR status is the Holocaust card.


April 8, 2013, 1:19 p.m.

And as a black woman attorney, I’ll tell you that white women, still push their advantage over black women—most.  Still pushing that white folks card, like no body’s business.


April 8, 2013, 1:20 p.m.

What is amazing is that there is no doubt that our society is rooted in white supremacy, yet many white folks are so easily offended.


April 8, 2013, 1:23 p.m.

To offend most white folks, all one has to say is: white folks. LOL

Yet, all day, everyday, on TV, 24/7, we hear about black and brown folks and how they are this and that.

Linda Garcia

April 10, 2013, 1:47 a.m.

I said this earlier:

“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. “
[ was the first comment]

I would also like to point out, a very important key fact. By my senior year in college, I had not just caught up to the other students, I had received straight A’s for the whole entire year!

Today, I’m a very successful professional, Director of Mktg. for a national law firm. I would never be where am I today, if not for the college education I received.

Never underestimate the power of education and the untapped human potential of the poor.

Linda Garcia

April 10, 2013, 2 a.m.

I also want to add that both my parents didn’t even have a high school education. My mom never went to high school and she had received a very poor public education in elementary school. She worked in a factory (in P.R.) at an extremely young age to help support her young siblings. My stepfather taught her how to read and write when I was 8 years old.


April 10, 2013, 2:54 a.m.

Observe Linda Garcia’s last line:  “Never underestimate the power of education and the untapped human potential of the poor.

Yes, that is true on an individual basis…more than that, it is true on a national - a strategic and competitive - basis.  All of the Americans who were educated post-World War II drove America to the top of the world; all of the Americans who were educated post-World War II drove American industry and America’s service sector to the top of the world by providing America with innovation after innovation.

And then things changed…rather, an attack was launched upon America.  All over America schools were attacked…factories were destroyed…service jobs disappeared…the ability of the many in America to pay taxes was hammered even as the wealthy few bought themselves tax cut after tax cut. 

We defeated Hitler and all subsequent enemies because we could afford war…we could afford to out-build, out-produce, and out-innovate any and all comers. In the years subsequent to World War II, our industrial and service infrastructure - our tax base - allowed America to spend billions…much on war, more on the American people themselves. 

In an irony that will surely feature strongly in future history books, much mirth was had at the Soviet Union’s expense as some in America claimed that we had “tricked” the U.S.S.R. into an arms race that only America could afford.  Yet even then…even then America was betrayed…our ability to afford even our own infrastructure was under attack.

In point of fact, the ability to afford all that America has accomplished has been under relentless attack since 1973.  Who are these enemies who today strike directly at America’s heart?  Who seeks to ensure that America will not be able to out-produce or out-innovate anybody, ever again?  Who is it that cuts taxes for the few at the top, and uses inequitable free trade to destroy the jobs of the many?  Thus hammering our tax base from every direction?  Who is it that uses oil as a platform from which to levy private taxes that are a cancer upon our economy?  Who is it that intentionally destroys America’s ability to prosper…to even defend herself?

Republicans and neoliberals…who yet dare call themselves American.

The great diversion of wealth from the many in America and the attack upon America’s tax base that were and are the enforcing of America’s addiction to oil, voodoo (“flood-up/trickle-down”) economics, deregulation, and inequitable free trade are weapons that Hitler would have given an arm and a leg for; they are weapons that would have won World War II for Hitler.

If the American people prosper…if they have productive jobs and access to education, then America prospers…America is strong.  If only the few prosper…if only the few can access education…then America becomes a hollow shell.

The goal of this nation’s Republicans and neoliberals is clear: Their policies insist that they seek to transform America into Mao’s “paper tiger” as quickly as that can be brought about.  They’re having great success…they are, in fact, the most efficient enemies America has ever faced.  In a democracy, they should be easily quashed…but they use “Divide, and conquer.” as their primary tactic against the American people, and it works…

For example, frivolous lawsuits that lack any merit other than their utility at turning race against race, ethnic group against ethnic group.

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