The Unfinished Work of Affirmative Action

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The story of two students at UT-Austin shows how race-based admissions can go right -- and raises questions about who's to blame when it goes wrong. 

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Jarius Sowells (left) and Tedra Jacobs (right) had contrasting experiences after they were admitted to UT-Austin. (Sarah Garland)

In 2008, two young women with similar academic records applied to the University of Texas at Austin for spots in the freshman class. One of the women, Abigail Fisher, was rejected. The other, Tedra Jacobs, was accepted. Fisher is white. Jacobs is black. Fisher sued, saying the university's admission process was discriminatory. Now, her case is before the Supreme Court, which will hear arguments today. The decision, which may be issued as late as next summer, could set new limits on the use of racial preferences in higher education, or even ban affirmative action outright.

"It could have been me who took her spot," says Jacobs. She is not apologetic, and neither is the university. Admitting students like Jacobs through affirmative action is part of the school's strategy to ensure that that the next generation of leaders is more representative of the nation's diversity than the last one. (There may be a black president in the White House, but there are no African Americans and only two Hispanics in the Senate.)

The court's decision in Fisher v. University of Texas could deal a major blow to efforts to promote racial diversity in education. In a 2007 decision, the court already significantly restricted the use of race in elementary and secondary school assignments; now, only a handful of districts around the nation actively attempt to integrate their schools, and racial separation in schools is back to levels not seen since the 1950s. The decision to take up the Fisher case suggests the justices may be willing to reverse precedents in a 2003 University of Michigan case and the 1978 Bakke decision, which both upheld the use of race in college admissions.

The case has revived long-simmering battles over whether racial preferences are good or bad policy. Proponents of affirmative action say limiting preferences could be devastating for non-white students, who have made strides in achievement in recent years--including big increases in higher education enrollment and smaller increases in graduation rates--and could see their representation in elite schools plummet. (Affirmative action is an issue mainly for the nation's top schools, where competition for spaces is more intense than for lower-tier institutions.) They cite dozens of studies supporting their cause, including a 2000 book-length study by the former presidents of Harvard and Princeton, and examples like California, which banned affirmative action and experienced major drops in the number of minorities at the state's flagship institutions.

Their opponents cite some new evidence suggesting that affirmative action programs may actually harm the students they were created to help. Their main concern is the problem of "mismatch," a theory that argues affirmative action allows many black and Hispanic students access to elite schools despite lower test scores, where they then suffer as they struggle to compete with their white and Asian peers. A recent Atlantic piece by Richard Sander and Stuart Taylor Jr. argued that after California's ban, graduation rates for black students actually doubled -- suggesting that the students admitted under affirmative action hadn't been a good "match" for the challenging California system.

The return of affirmative action to the national spotlight also raises a larger question: Are the nation's top higher education institutions actually producing a set of new leaders who represent America's increasing racial and ethnic diversity? Or, put more simply, are they doing all they can to improve outcomes for disadvantaged minority students?

While much evidence suggests black and Hispanic students perform better if given a chance to go to competitive schools, they still lag behind white and Asian peers on critical measures like graduation, even at the best colleges. If those numbers don't change, it may be a long time before the faces of the nation's elected officials, business executives, and university faculties mirror the rest of the population.

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The University of Texas has partly defended itself in the Fisher case by arguing that Abigail Fisher's test scores and grades were too low for her to be eligible for admission, even if she had impressed the school with personal characteristics like leadership or perseverance in the face of adversity. But Fisher, who was rejected, and Jacobs, who got in, were similarly positioned when it came to academics. Both Fisher and Jacobs attended well-regarded suburban high schools in Houston, earned good grades, and graduated near the top of their classes, although Jacobs' SAT score was nearly 100 points higher than Fisher's.

"I don't think my high school prepared me very well to begin learning at this institution," Sowells says. "I was around people who didn't look like me, didn't talk like me."

The SAT points likely made a difference, but Jacobs was admitted on a probationary basis--which required her to attend a summer program before her freshman year--suggesting the university wasn't completely satisfied with her academic background. But Jacobs' racial and economic background fit other criteria the university wanted as it tried to build a diverse freshmen class.

Fisher grew up in a two-parent, middle-class home, according to Edward Blum, an affirmative action opponent and family friend of the Fishers, who have avoided the news media. Both of her parents graduated from UT. Jacobs, in contrast, grew up poor, the daughter of an African-American single mother, in a family in which no near relations had graduated from college. Before she entered kindergarten, her mother joined a scatter-site housing program for low-income families that helped them to rent a home in the suburbs. Jacobs' siblings had attended struggling inner city schools, where most of their fellow students were also black and poor. Her older sister dropped out of college and got pregnant; her older brother went to jail.

But even in the suburbs, Jacobs faced obstacles. In her first year at school, a teacher decided Jacobs was slow and should be held back. Her mother fought against the decision, and eventually she was elevated to gifted and talented classes. Her peers had parents with college degrees and strict rules about homework; Jacobs didn't have a bedtime and often did her homework in the morning before school. But she had smarts and a competitive streak, and she continued to excel. "I don't consider myself a victim, but I have been disadvantaged so I had to work that much harder," Jacobs says. "I never got a head start in anything because my parents exposed me to it beforehand."

Perhaps if she had received more guidance about how to succeed academically, she would have been automatically admitted to her top choice school, UT-Austin. After a 1996 court decision banned affirmative action in the state, Texas legislators found a more roundabout way to boost racial diversity at the state's public universities. They passed a law in 1997 requiring schools to guarantee admission to the top 10 percent of the graduating class at every public high school in the state. Given the extreme racial segregation in Texas secondary schools, this resulted in a fairly diverse class of freshman each year.

But the university was unsatisfied with the legislature's Top 10 Percent plan, arguing that the level of diversity it produced was not sufficient. The university further revamped its admissions process after a 2003 Supreme Court case found that universities could consider race as long as it was a small factor among many in a "holistic" admissions system. The vast majority of applicants continued to be admitted under the 10 percent program; for the remaining group, admissions officers added race back to a list of considerations that also included involvement in clubs and student government.

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Sarah Garland is a staff writer at The Hechinger Report, a nonprofit, nonpartisan education-news outlet based at Teachers College, Columbia University, and author of the forthcoming book Divided We Fail: The Story of an African American Community that Ended the Era of School Desegregation.

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