Jan 1 2013

The Unexplored Questions of Affirmative Action

Coverage of admissions case a catalog of broadsides

Against the electric backdrop of electoral polemics, the October 10 Supreme Court session on the constitutionality of race-conscious admissions at the University of Texas sent few sparks flying.

Zeroed in on the election, the press dutifully reported the tit-for-tat and quips and quibbles around the case (Fisher v. University of Texas at Austin), but left untouched the deeper implications of potentially overturning affirmative action. Reviewing the coverage felt like staring at an iconic three-dimensional chess match from Star Trek—only with all lower levels of the board disappeared from sight.

Source: Cnn.com

Source: Cnn.com

An overview of the main pieces: Abigail Fisher, a white student rejected by the University of Texas at Austin, filed a lawsuit contending she had been wronged by the school’s race-conscious admissions policy. The school fills three-fourths of its spots by automatically accepting the top 10 percent of in-state high school students (Fisher didn’t qualify), and the rest by looking at a variety of factors, including “test scores, community service, leadership, work experience”—and race (CNN, 10/10/12).

Media noted that a less conservative court had greenlighted affirmative action in secondary education in 2003 (Grutter v. Bollinger), with then-Justice Sandra Day O’Connor observing that the measure ought to expire in 25 years, but today’s John Roberts–led court may be looking to shorten that timeline.

NPR (10/10/12) characterized the session as “a potentially lethal hit” to affirmative action. The Washington Post (10/10/12) concurred, saying that “it seemed highly unlikely that a majority of the justices would announce a ringing endorsement of racial preferences.”


These and other outlets explained to readers that conservative jurists hammered the university’s hapless lawyer with hostile, mocking questions. Of prime concern was the concept of “critical mass”—phraseology used to describe the balance in diversity the school wanted to strike. “Does critical mass vary from group to group? Does it vary from state to state?” Alito prodded.

When the university’s lawyer later noted that the institution sought minority students from both disadvantaged and privileged backgrounds, Kennedy pounced: “So what you’re saying is that what counts is race above all.”

“Should someone who is one-quarter Hispanic check the Hispanic box or some different box?” Roberts asked. “What about one-eighth?”

The jurists’ questions, the university’s defense, the court’s record, the plaintiff’s complaint—all point to a panoply of assumptions, assertions, grievances and histories of profound importance. Why is the court obsessed with quantification of “critical mass,” especially when it has averred in previous rulings that quotas should be avoided? How should class be addressed, both within and outside race? What’s the corrective to overly broad racial categories in a multi-racial era?

But the press largely failed to pose, let alone answer, such questions—as though cataloguing the reflexive rhetorical broadsides of this or that justice somehow sufficed.

It’s not as if reputable voices haven’t chimed in. The Century Foundation, a progressive think tank, issued a report a week before the ruling, “A Better Affirmative Action,” arguing in impressive detail how economic disparities in access to higher education outpace racial ones, examining the landscape in states where affirmative action has been banned, and delineating thoughtful alternatives.

Along similar lines but presenting a differing perspective, the Brennan Center for Justice at NYU (Atlantic, 10/11/12) laid out a concise case in favor of race-conscious admissions, citing persistent race-based inequities and averring: “Growing up on a farm and running for student body are character-building experiences that deserve a place on college applications. So is being a person of color in America.”

Mainstream news outlets appeared unwilling or unable to address even the most fundamental aspects of affirmative action, including the merits or weaknesses of legal arguments behind it. One must turn to commentary outlets, such as the progressive race magazine Colorlines (10/10/12), to read that two legal rationales —diversity and equity—remain standing, and that the argument for equity is getting short shrift because schools seek to avoid “present[ing] evidence showing that they’ve previously discriminated against the groups they’re now going to great lengths to admit,” which “would open them up to litigation from students of color who’d been denied.”

If journalists are to serve as guardians of democracy, they ought to do more than recount who said what—and it isn’t sufficient to “explain” who said what by recounting who is what (conservative or liberal). Such simplistic stenography doesn’t befit knights in shining armor or on chessboards—even of the two-dimensional variety.