UT’s affirmative action policy is unconstitutional

Daniel Hung

In 2013, in a 7–1 vote, the Supreme Court sent Fisher v. University of Texas back down to the 5th Circuit. Then, in a surprise to some, the Supreme Court agreed to hear the case again.

The decision will likely be closely divided, with it being a toss up as to whom the Court will rule in favor of. Yet even if the Supreme Court rule against Fisher, discrimination on the basis of race in University admission processes cannot last forever. The Supreme Court said as much in the 2003 decision Grutter v. Bollinger: Associate Justice Sandra Day O’Connor wrote for the majority that affirmative action should only last for 25 years at the most, after which a race-neutral admission policy that achieves diversity will have been created.

Many supporters of affirmative action are ignorant of the legal precedents behind it, thus arguing that affirmative action is needed to right past wrongs. However, any basic research would reveal that the Supreme Court has held that affirmative action cannot be justified under righting past wrongs. UT argues that even though the top 10 percent rule is very successful in admitting a diverse student body, it still needs to consider race in a holistic process for the remaining 25 percent of students admitted outside of the top 10 percent rule.

There are three significant flaws with UT’s argument and its affirmative action policy, which together should be reason enough for the Supreme Court to rule against UT. First, it is not true that race is merely considered in admissions; instead, it plays a greatly disproportionate role in whether a student is admitted. Second, if UT is serious about achieving student diversity, it would move beyond generic five-race categories of self-identification. Lastly, if the hidden purpose of UT’s affirmative action policy is to right past wrongs, UT should simply consider the applicant’s family income.

For those admitted to UT in 2009 that were outside of the top 10 percent rule, the average GPA/SAT scores were as followed: African-Americans had a 2.57/1524 average, which is the 52nd percentile; Hispanics had a 2.83/1794 average; whites had a 3.04/1914 average; and Asian-Americans had a 3.07/1991 average, which is the 93rd percentile.

Fisher had a GPA of 3.59 and a SAT Score of 1180 out of a possible score of 1600. (UT did not consider the Writing section in 2008.) The University claimed that race is only a “factor of a factor of a factor of a factor” they consider. However, the numbers are pretty clear. Apparently, race matters a whole lot more than everything else, such as your GPA, SAT, extracurricular activities or even socioeconomic status.

In order for the University’s affirmative action policy to be constitutional, it must be necessary to meet a compelling interest and is narrowly tailored to that end. UT’s policy is not narrowly tailored.

The second problem is that UT’s affirmative action policy does not seek to achieve true diversity, as the Supreme Court ruled constitutional affirmative action policies must. Race does not equate diversity, because diversity is not just skin deep. And we do not live in a world where everyone can be identified by the generic five racial categories given on admissions documents. True diversity takes into account different views, upbringing, nationality and more. In every supposed racial category, there is great diversity between individuals. If diversity is really the goal of this University, we should let applicants put down how they identify themselves beyond the generic five racial categories, such as Kurdish-, Albanian-, or Taiwanese-American. From an educational standpoint, classes would likely benefit more from having a diversity of nationalities than one of race. This is true more so in our increasingly globalized world today. Therefore, if this University actually cares about diversity, it would move beyond the generic five-race categories.

Lastly, I suspect the reason why the University is not seriously pursuing true diversity is because supporters of affirmative action actually care more about righting past wrongs than diversity itself. But race is not a perfect proxy for poverty. Sure, Hispanics and African-Americans are statistically more likely to come from lower-income families, on average, but that does not mean that there are no poor Asian-Americans and whites nor any wealthy Hispanics and African-Americans. Forgetting the ruse of diversity, if the goal is to help those in need get a college education, just take a person’s socioeconomic background into account instead of race.

Banning racial affirmative action is not a conservative or liberal cause as the eight states (comprising 29 percent of the US population) that banned affirmative action include states that span the political spectrum.  Banning racial affirmative action is about justice and fairness, about ending discrimination against applicants of all races. One day, racial affirmative action in university admissions policies will be banned across the nation. Whether that day will be in 2028, as the Supreme Court set, or earlier, I can only hope our University will be on the right side of history and not at the forefront of bigotry.

Hung is a second-year law student from Brownsville.