Commentary Law and Policy

Abigail Fisher: The Aggrieved White Woman Who Could Destroy Affirmative Action

Imani Gandy

On Wednesday, the U.S Supreme Court will hear oral arguments in round two of Fisher v. University of Texas, a case that is practically an allegory for white entitlement.

On Wednesday, the U.S. Supreme Court will hear oral arguments in round two of Fisher v. University of Texas, a case that is practically an allegory for white entitlement.

At the center of the case is Abigail Fisher, the latest in a line of white women who have filed lawsuits seeking to destroy affirmative action policies because they felt entitled to attend the school of their choosing, oblivious to the fact that destroying these policies will put everyone but white men at a disadvantage.

It’s hard not to draw the conclusion that Fisher’s lawsuit is a product of her entitlement. She’s noted that all of her friends and family went to the University of Texas at Austin, and so she felt like she was entitled to go too, never mind the fact that she didn’t have the grades to get in. And if getting her way means destroying a policy that has been proven to benefit white women the most, then that’s what Fisher evidently intends to do.

Abigail Fisher applied to UT for admission into the undergraduate class of 2012. When UT rejected her application, she sued the university, alleging that it discriminated against her because she is white.

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The competition to get into UT the year Fisher applied was stiffer than at Harvard University. But rather than accept that she simply wasn’t a strong enough candidate to gain admission that year, she decided to blame her failure on people of color whom she thought had lower grades and fewer extracurricular activities.

“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 explained in a video published by the Project for Fair Representation, the legal defense fund litigating Fisher’s case.

That Fisher’s application was average is not in dispute: Abigail Fisher did not graduate in the top 10 percent of her class. If she had, she would have gained automatic admission into the University of Texas thanks to the “Top Ten Percent Law” that, essentially, guarantees an acceptance to every Texas resident who graduates in the top ten percent of his or her high school class.

In 2008, the year that Fisher applied, 80 percent of entering freshmen were selected through the Top Ten Percent Law, according to UT court filings. Since Fisher didn’t make the 10 percent cut-off, her application—along with all the other applicants in that category—was tossed in a pile. After a holistic review of her application, which considered a number of factors, including race and gender, UT rejected it.

The holistic review process, as described by UT in court filings, is “intended to identify and reward students whose merit as applicants was not adequately reflected by their class rank and test scores.” UT reviews a candidate’s race and gender along with leadership, extracurricular activities, languages spoken at home, socio-economic status, and other factors.

While it’s true that UT admitted dozens of candidates that were either equal to or “less qualified” than Fisher—strictly in terms of test scores and grades—only five of those “less qualified” candidates were Black or Latino. Forty-two were white.

But that didn’t matter to Fisher. She was convinced that her skin color was the reason that her application was rejected.

Thus far, no court has agreed with her. In 2009, the district court ruled that UT’s admissions policy was constitutional under the 14th Amendment. The Fifth Circuit Court of Appeals agreed with the district court in 2011.

In 2013, the U.S. Supreme Court agreed to hear the case for the first time. The Court concluded that the Fifth Circuit had been too deferential when analyzing UT’s admissions policy. “Strict scrutiny does not permit a court to accept a school’s assertion that its admissions process uses race in a permissible way without closely examining how the process works in practice, yet that is what the District Court and Fifth Circuit did here,” wrote Anthony Kennedy for the majority.

The Court kicked the case back down to the Fifth Circuit with instructions to examine UT’s admissions policy more carefully. Under the strict scrutiny rubric, the Fifth Circuit was required to ensure that the policy was “narrowly tailored to serve a compelling interest.”

Fisher has been quibbling with the “narrowly tailored” prong of the strict scrutiny fork.

She has conceded that diversity is a ”compelling interest,” thus satisfying the first prong, but argues that UT’s admissions policy is not narrowly tailored. The Top Ten Percent Law has done enough to increase minority enrollment, according to Fisher, and there is no need for UT to do anything further by holistically reviewing applications.

The Fifth Circuit disagreed. The court found that UT might be able to achieve a diverse student population through the Ten Percent plan alone, but that didn’t mean UT couldn’t do more.

In addition, the Fifth Circuit found that UT’s decision not to rely solely on the Top Ten Percent Law was correct, since the only reason the plan works to promote diversity is because of statewide segregation. Since most Black and Latino students attend primarily Black and Latino high schools, skimming the top 10 percent of students from those segregated high schools necessarily increases minority enrollment at UT. The court said that relying solely on the Top Ten Percent Law would be perverse, since it would put into place precisely the sort of racial quota that UT was trying to avoid. The Top Ten Percent Law alone did not allow for the sort of holistic review that might lead to, for example, the admission of a white student who fell just outside the 10 percent cut-off because she attended a better-funded, higher-performing high school than another less-qualified white student who made the 10 percent cut-off because her high school overall is low-performing.

Ultimately, the Fifth Circuit concluded that UT’s admissions policy was perfectly constitutional. Again.

Fisher appealed to the Supreme Court. Again.

And now the Supreme Court is poised to undo 30 years of affirmative action jurisprudence because yet another aggrieved white woman seems unable to come to grips with the fact that she simply wasn’t good enough to be admitted into the school of her choice.

The Supreme Court first sanctioned affirmative action in a 1978 case, Regents of the University of California v. Bakke. In Bakke, the Court held that UC Davis medical school’s admissions policy of reserving some slots with different admissions standards for minority applicants was unconstitutional, but also ruled that colleges and universities could consider race and ethnicity in applications as long as that consideration did not lead to racial quotas. 

The Supreme Court did not consider another affirmative action case until nearly 25 years later, when, in separate lawsuits, a couple of white women, Jennifer Gratz and Barbara Grutter, challenged the admissions policies at the University of Michigan at Ann Arbor and the University of Michigan School of Law, respectively.

In 2003, the Supreme Court sided with Gratz, and ruled that University of Michigan had violated the Constitution by using an undergraduate admissions system in which underrepresented minority applicants received points on the basis of their ethnic or racial background. On the same day, in Grutter’s case, the Supreme Court ruled that the University of Michigan School of Law had not violated the Constitution when it considered applicants’ race and ethnicity because it did so through a holistic review of the candidate, and did not simply award points based on race and ethnicity.

Fisher differs substantially from both Gratz and Grutter. Jennifer Gratz and Barbara Grutter brought their lawsuits on behalf of not just themselves, but also on behalf of future white applicants. They sought a determination that the admissions policies at the University of Michigan and its law school were unconstitutional and could no longer be used.

Abigail Fisher, however, sued for herself and herself alone. (Fisher originally filed suit with another 2008 UT applicant, Rachel Michalewicz, who has since dropped out of the lawsuit.) She sought an injunction blocking UT from using race as a factor in determining admissions and a declaration that using race as a factor in determining admissions violated the Equal Protection Clause and was therefore unconstitutional. She wanted the court to force UT to reevaluate her application using race-neutral criteria, and to admit her if she qualified under those race-neutral criteria. She didn’t seem to care much about future white applicants, or else she would have sued on behalf of a class of prospective applicants.

Eventually, Fisher also threw in a request for reimbursement of her $50 application fee and $50 non-refundable housing deposit, for a total of $100. But the thrust of her case was never about money. It wasn’t even about undoing UT’s affirmative action program for the supposed benefit of a class of people who had been previously oppressed by UT’s admissions policy.

Fisher’s case was about Fisher getting into UT. And now that she’s already graduated from another university, the only relief that is still available to Ms. Fisher is a $100 refund. If the Court rules that the University of Texas acted unconstitutionally with respect to her admissions, however, UT would still be forced to decimate its admissions policy.

And that’s where the fate of affirmative action now lies: In the hands of a white woman who would almost certainly not have been admitted to UT even if UT ignored race as one of multiple factors in UT’s holistic review process. It is hard not to feel bitter at the prospect of the wasted opportunities for thousands of people of color.

Ironically, should Fisher be successful in upending affirmative action, she will be destroying a program that has benefited people like her—white women—more than any other group.

Kwanzaa Imani highlighted this in an article she wrote for For Harriet, poignantly titled, “Abigail Fisher, Please Stop Blaming People of Color for Your Mediocrity.” Imani wrote, “We already know that white women have benefitted the most from affirmative action laws for decades. And now that they’ve benefitted from these laws socioeconomically, Fisher v. The University of Texas and cases made by other white women show us that they can now afford to attack what propped them up in the first place.”

The explosion of women in higher education is a recent phenomenon. As Michele Goodwin wrote for the Chronicle of Higher Education, it was only 30 years ago that this country’s most vaunted institutions graduated only a handful of women students. Before affirmative action policies gave women a leg up, law schools in this country refused to admit women applicants at all, presumably because they believed that women just aren’t cut out to be lawyers.

Goodwin pointed out that women did not magically become smarter in the 1970s, ’80s, and ’90s. Rather, federal law prevented universities that receive federal funding, like the University of Texas at Austin, from discriminating against women and people of color. That’s the reason that women, white women in particular, have been able to succeed in higher education, small business loans, government contracts, and the like. Not because white women are magic.

As Sally Kohn wrote in an article for TIME last year, “The successes of white women make a case not for abandoning affirmative action but for continuing it.”

“As the numbers in the Senate and the Fortune 500 show, women still face barriers to equal participation in leadership roles,” Kohn continued. “Of course, the case for continuing affirmative action for people of color is even greater.”

Indeed, it is greater.

Since UT implemented its current admissions policy, the number of students of color at UT exploded. The result has been a balanced and diverse student body at a school that one magazine dedicated to diversity in higher education ranked “sixth in the nation in producing undergraduate degrees for minority groups,” according to court filings.

As I wrote three years ago in an article about what this case means for women of color in Texas, UT’s holistic approach, which closely tracks the University of Michigan plan that the Supreme Court said was constitutional in Grutter, benefits not just students of color, but white ones as well. A deviation from that plan will almost surely result in another dramatic decline in minority enrollment and applicants. If the Court strikes down the plan and reverses its decision in Grutter, the repercussions will spread to other universities. They will be forced to drop considerations of race in admissions or else face lawsuits by aggrieved white women like Abigail Fisher, Jennifer Gratz, and Barbara Grutter.

The decimation of affirmative action won’t benefit anyone but white men. It certainly won’t benefit people of color. Nor will it benefit the white women who, for the past 30 years, have made out like bandits as a result of affirmative action policies.

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