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What Abigail Fisher’s Affirmative Action Case Is Really About

Posted on Mar 21, 2013
AP/Susan Walsh

Abigail Fisher and Edward Blum, whose nonprofit is bankrolling Fisher’s lawsuit, outside the Supreme Court the day oral arguments were heard in the case in October.

By Nikole Hannah-Jones, ProPublica

(Page 3)

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.


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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.


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