Last week, The Supreme Court of the United States heard oral arguments in a case challenging affirmative action at the University of Texas. Fischer V University of Texas at Austin challenges the specific quota used by the University of Texas system to include students from all the schools in the state, which fills approximately three-fourths of the university’s student body. The case is seen as crucial in the fight for affirmative action and a must-win case for proponents of affirmative action. Fischer has been argued a mere decade after Justice Sandra Day O’Connor’s opinion in Grutter, saying that there was a need for affirmative action, but providing a sunset provision that the need might not longer be necessary after a quarter century.

A fascinating wrinkle in the Fischer is that two of the nine justices are products of affirmative action, and their opinions on the matter differ incredibly. Associate Justice Sonia Sotomayor has been open and accepting of the role affirmative action played in her life. She notes that in college and law school she felt wildly out of place. This however never deterred her and made her a stronger justice in the end. Oppositely Associate Justice Clarence Thomas, most famous for his absolute silence, is an affirmative action case two times over. Clarence Thomas was a product of affirmative action in getting into Yale Law. But affirmative action also played an important part in his getting his position on the Court. Thomas is the immediate successor of Thurgood Marshall, the first black justice on the Supreme Court. When Thomas was nominated, his race was a strong factor as nominating a conservative white man would have looked bad for the then President, George H.W. Bush. Despite his obvious advantages due to affirmative action, Thomas is an ardent opponent of the policy and wrote a scathing dissent in Grutter; a part of which was popularized by Justice Scalia’s repugnant remarks in oral argument.

Despite what Thomas and opponents of affirmative action think, the policy is actually very beneficial because it creates a more diverse student body than would otherwise be found in a college. This is due in no small part to the fact that test scores are so heavily weighted and there are systemic and institutional inequities in education that require a policy adjustment. But i will get to that later. I went to a diverse school in California. Thanks to the Bakke case, California has been able to use race as a factor. Despite this, my school was one of the more diverse in the University of California system and I felt I learned a lot from my peers. What mattered to me was not their test scores nor their inherent learning abilities, but their experiences and their differing outlooks, traditions and cultures.

Being exposed to these differing customs, traditions and modes of thought made me a more creative person and made me a more critical thinker in my studies.In fact, in a couple of my classes, I learned more about the world through the stories that my peers told than by lectures alone. One example was a Queer Movements class and we had a breakout discussion on the ways in which we had been discriminated against. As a white gay man who was born into a higher socioeconomic level, I had not been subjugated as much to discrimination as my peers and their stories were incredibly illuminating in understanding the way that racism, sexism, homophobia, transphobia and other modes of discrimination still rear their ugly heads today. Never in my studies did I feel that affirmative action, or the watered down version in California, was in any way inhibiting my education. On the contrary, I felt that it enhanced it a great deal.

In creating a more diverse student body, affirmative action creates a better and more inclusive educational experience. If a university was two-thirds white and one third were composed of minorities, the prevailing institutional norms would favor white students and encompass the viewpoints of white students more than others. Oppositely, if a more diverse student body is created, then the ability to learn about new cultures and the way these cultures see the world can greatly impact the way that the school acts and the remaining student body learns. For example, if a university has as strong Jewish and Palestinian population then the opportunities for learning more about the conflict from opposing sides might add a greater nuance to the situation than learning from just textbooks and armchair academics.

In the case before the Court, the question is specifically about racial affirmative action. Though there are other forms of affirmative action, those will be addressed later in this post even though the court deigns to ignore it for their case. Race is an important factor in affirmative action. Our country was built the racist premise of slavery; an original sin from which we have yet to be absolved. Yes, slavery has ended and there have been great strides made for all communities of color, there is no way that we have solved everything. Despite the abolition of slavery and the passing of civil rights laws (a mixed back in our politics of today) the systemic inequities and inequality in our system is pervasive. One need not look farther than voting restrictions, housing policy and the #BlackLivesMatter movement to see the persistent inequality of America when it comes to race. This is precisely why affirmative action is needed.

What are our qualifications to reach college? Test scores, specifically the SAT with some others. The problem with these high-stakes tests is that these tests often are a better reflection of the student’s parents’ economic status that the learning potential of the student. The more affluent a student’s parents are, the more likely it will be that they can enroll in and take the classes necessary to help boost their students score. And thanks to the structural and systemic racism that pervades our laws, these outcomes have a disproportionate effect on communities of color. This means, writ large, that communities of color show lower test scores while white students show higher which, again, has no direct bearing on the performance of the student in class, yet says everything about one’s chances of getting in to the college of their choice. In mown experience I didn’t have the greatest of SAT scores, yet I was able to graduate cum laude for my undergraduate degree and was the top of my class in my graduate classes. I never once felt that the score I received was somehow my academic ceiling, it was just an important test that I didn’t do as well as I had hoped on. If I had all the economic privileges in the world to pass my SAT and I didn’t and it had no effect on my ability to learn, what does that mean for the students in much tougher circumstances that cannot take any classes at all?

I actually am a proponent of expanding affirmative action to encompass other factors such as socioeconomic status, race, ethnicity, orientation and gender identity. Using more factors in creating a diverse student population makes campuses more resemble the world they inhabit and creates a greater confluence of ideas than sticking to just a single group dominating the others. I would love to see all of these factors included in an intersectional matrix that tries to balance the systems of privilege and oppression in our world. One caveat to this is that I do not feel that we can move forward on expanding affirmative action until we shore up affirmative action for people of color. America’s roots are undeniably racist to modern eyes and our laws and legal systems continue to have a disparate impact on these communities. As such, affirmative action for people of color is a must to counterbalance our history and inexorable nature to create unequal systems. Only once this barrier has been surpassed can we move forward on including more factors into university admissions.

A final problem when we discuss affirmative action is that most opponents certainly don’t mind affirmative action by other names such as “legacy” or “athletic scholarship”. Rich, usually white families can use their status as alumni to pave the way for their children or grandchildren to attend the same university they did when younger. Is this not a form of affirmative action? There is no guarantee that the success of the parent or grandparent will be at all determinative in the student’s academic success. Though there can be no doubt that each parent whats their child to do better and succeed more than them, it cannot be inferred that this means that the student will be a success at the university.

And what about college athletics? Though this is a rather messy can of worms that deserves its out post (or book for that matter) it cannot be understated that a part of being a star athlete is acceptance to prestigious schools even if your academics wouldn’t have gotten you into the school. Despite this, no one bats an eye at this form of affirmative action most likely because of the direct benefits of the athletic performance of these students for the university’s pocketbook. Not once have I heard someone squabble that the star quarterback was only accepted because he can play sports. Not once have i heard the star basketball player derided for a lack of academic success. No. the anti affirmative action lens is firmly looking solely at communities and students of color that do not have the athletic of familial connections to get into their ivory tower.

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