Dec 9, 2013
What Abigail Fisher’s Affirmative Action Case Is Really About
Posted on Mar 21, 2013
By Nikole Hannah-Jones, ProPublica
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.
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.
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 Blackmum 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.”
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