Fisher v University of Texas: Beyond Legal Debates

Now that the Supreme Court has heard arguments about the Fisher v University of Texas at Austin case, there has been a flurry of discussion in the press.  Not surprisingly, most of the discussion is concerned with a variety of legal issues including the following: Is taking race into account in college admissions legal?  What will particular Justices do?  Will affirmative action be saved, gutted or limited?

As important as these questions are, they limit discussion of larger non-legal issues like whether or not affirmative action is desirable.  Various writers and pundits have their views on these issues, but they are not always discussed in an explicit  way.

In my reading of affirmative action discourse, there are at least four different general positions taken, each of which has variations on the general theme.  First are those who argue that we never needed affirmative action.  Instead, they argue, college admissions should be based solely on meritocratic criteria like grades and test scores.  Proponents of this never-needed argument tend to say that any consideration of race is unconstitutional and/or that affirmative action discriminates against whites (and, sometimes, Asians).

A second view is that while affirmative action may have been necessary in the past, we don’t need it anymore.  One variation of this view is that we have evolved to a post-racial society where race is no longer important.  Another variation is that racial diversity can be achieved through non-racial policies that favor blacks and Hispanics.  The top 10% policy in Texas, for example, is seen helping blacks and Hispanics due to the segregated nature of Texas schools.  The top 10% of students in an all-black high school would automatically be admitted to the University of Texas even though they might not have qualified under a more meritocratic admissions policy. Another proxy policy is to use income as a criteria for admission, arguing that since blacks and Hispanics have lower incomes, they would be disproportionately helped by class-based affirmative action.

In addition to these two critical views, a third position argues that we still need affirmative action  temporarily.  Higher education has made progress in racial diversity, they say, but there is still a way to go.  Many who hold this view support reshaping affirmative action to fit the Supreme Court’s current view that there should be a critical mass of minority students to promote a vigorous exchange of diverse viewpoints on campus.

Finally, there is a fourth position that argues that affirmative action is needed for the foreseeable future.  This view is based on the argument that institutional racism is still strong, that meritocratic standards are too narrow, and that the ultimate goal is to have each racial group represented on campuses at approximately the same rate as they are represented in the population.

Using this four-fold framework allows us to examine affirmative action outside of the structures of legal arguments.  For example, I would suggest that both critics and the need-it-temporarily supporters both believe that a meritocratic admissions policy would be best if only it could be fair.  The foreseeable-future supporters, on the other hand, argue for a broader definition of merit because grades and test scores will always advantage the wealthy and powerful; i.e., it will never be fair.  Including overcoming adversity, service-to-the-community and grassroots leadership potential in admissions standards would broaden the concept of merit.  This would be consistent with the view that higher education should produce active and critical citizens for the whole society rather than just  skilled labor for corporations.

Another example: Rather than arguing that family income should be a proxy for race, as the don’t-need-it-anymore critics suggest, foreseeable future supporters might argue that affirmative action should be broadened to include both race and family income.  Low income whites, blacks and Hispanics are disadvantaged by class, but but all blacks and Hispanics, regardless of income, are also disadvantaged by race.

Finally, the concept of “cumulative privilege” means that racial discrimination against blacks in the 1950s still has a negative impact on blacks and a positive impact on whites born in the 1990s and beyond.  Intentional institutional discrimination against black home-buyers after World War II made it more difficult for black families to acquire wealth and pass this on to their children.  This still has an impact in the racial composition of the neighborhoods that they live in and the schools that they attend.  This, in turn, makes it more difficult for blacks and, also Hispanics, to qualify for college.

The Supreme Court isn’t considering cumulative privilege, the nature of meritocracy or the possibility of broadening affirmative action.  Although the rest of us should be cognizant of the important ramifications of the impending Fisher decision, we shouldn’t lose sight of these larger issues.  Race-based affirmative action in college admissions is still needed in a society where racial inequality is such a prominent feature.

Confused Thinking about White Student Unions and Racism

The controversy over establishing a White Student Union (WSU) at Towson University in Baltimore provides an excellent opportunity to explore how whites think about issues like racism, inequality, discrimination and education.  While it may be the case that Matthew Heimbach, the white student promoting the WSU, is a genuine white supremacist, some of his arguments resonate with more mainstream whites: “If they have a Black Student Union, why shouldn’t we have a White Student Union?  Isn’t this just a matter of fairness?”

Even before the 2008 election of President Barack Obama, public opinion polls showed that a large proportion of whites believed that racism was a thing of the past.  In employment and education, the argument goes, the playing field is fairly level today.  Racial discrimination is only a minor problem and hard work generally leads to success.

Of course, most of us can clearly see that there are large inequalities between the incomes and educational attainments of whites and Asians, on the one hand, and Blacks and Hispanics on the other.  The explanation inequality, according to this argument, relies on culture rather than discrimination: Blacks and Hispanics don’t try hard enough, they don’t value education, they don’t have strong families, etc.  Sociologists refer to this as blaming the victim.

If you accept this culture argument, the idea that whites are privileged and that special programs are needed to help Blacks and Hispanics seems ludicrous.   Not only are these programs seen as unnecessary and wasteful, many of them are viewed as hurting whites who have struggled hard to get where they are.  Some even use the term reverse discrimination.

The problem with this way of thinking is that it’s not based on reality.  Racism and racial inequality are, unfortunately, still alive and well, even though they are different than in the past.

o In 2009, for example, the FBI reported almost 4000 race-based hate crimes, with Blacks being victimized at four times the rate of whites.  Most observers see this as the tip of the ice berg.

o In 2011, 35,000 race-based employment discrimination complaints were filed with the Equal Employment Opportunity Commission, the vast majority by Blacks and Hispanics.

o  Blacks and Hispanics make up 61 percent of the prison population even though they are only about one-third of the American population.

o Towson University is still a predominantly white campus, with almost 70% of the student body being white and only 13.5% black.  Compare this to the 30% of the state population that is black.  Even UMBC, a more selective institution on the other side of Baltimore County, clocks in at 15% black and slightly less than half white.

Towson, like most other colleges,  reflects mainstream American culture, which is also white.  Towson University IS the white student union, although it is making progress with cultural diversity.

Minority student unions began emerging across the country in the late 1960s to develop a sense of cultural solidarity and to fight for minority rights and more diversity on campus.  While they have achieved some success, the struggle isn’t over.  White student unions are a great step backward.

Affirmative Action in College Admissions: Race vs Class


Fred L. Pincus


In the current debate over affirmative action at the University of Texas, one issue that always comes up is the “class vs race” debate.  While affirmative action programs on college admissions focus on race, critics often argue that the real problem is class; i.e., low income families are underrepresented in higher education.

As so often happens in affirmative action debates, critics present this as an “either/or” discussion when it should be structured in “both/and” terminology.  Non-Asian students of color still need help, but so do low income students from all backgrounds.

Some simple statistics can illustrate this point.


Table 1: Percent Distribution of Bachelor’s Degrees Compared with Racial Distribution of Population, 2010
Racial Group Bachelor’s Degrees Total Population Over/Under Representation
Non-Hispanic Whites             72.9%             63.8%             +9.1%



Black             10.3             12.2             -1.9
Hispanic               8.8


American Indian               0.8



Other/ 2+ races                na







Chronicle of Higher Eduation, August 31, 2010.  U.S.Census Bureau.

These data make it clear that in spite of several decades of affirmative action and other programs designed to help the underprivileged, whites are still overrepresented in the percentage of bachelor’s degrees that they receive (72.9%) when compared to their distribution in the general population (63.8%).   Blacks and especially Hispanics are still underrepresented.

Asians are also overrepresented among BA recipients but this figure masks important differences among Asians.  While students from Chinese, Japanese and Indian backgrounds are doing quite well, those from Vietnamese, Cambodian and Hmong backgrounds are not.  The data also suggest that American Indian students are adequately represented but the numbers are too small to be confident in this conclusion.  There is still a lot of work to be done to achieve racial equity.


It is much more difficult to get good data on family income and education than on race.  Fortunately, a neat little newsletter, Postsecondary Education Opportunity, has been publishing these data for years.  Using federal income data, Tom Mortenson separates families into 4 income quartiles, or fourths.  He then estimates the chances that a student from each quartile will get a bachelor’s degree.

Table 2: Estimated Baccalaureate Degree Attainment by Age 24 by Family Income Quartile, 1970 and 2009
Family Income Quartile  























Highest:lowest ratio





Postsecondary Education Opportunity, November 2010.


In 2009, children from the highest income quartile had an 82.4% chance of getting a BA, while those from the lowest quartile only had an 8.3% chance of getting a BA.  This means that high income children were almost 10 times more likely to get a BA than children from low income families.

Comparing the 2009 data to the 1970 data, we see several things.  First, students from all quartiles were more likely to get a BA in 2009 than in 1970.  Second, students from low income families were less likely than those from high income families to get a bachelor’s degree in 1970, just as they were in 2009.

Finally, and most astonishingly, the gap between high and low income families grew significantly in 2009 as compared with 1970.  In 1970, students from high income families were 6.5 times more likely than low income families to get a BA.  In 2009, that same figure jumped to 9.9.

What does this tell us.  First, it is still necessary to pursue race-based affirmative action to deal with the under-representation of blacks and Hispanics among BA recipients.  Second, it is necessary to pursue policies to increase the number BA recipients from low- and moderate-income families.  Both race and class inequality in higher education are still critically important.  Most of those who make the “class rather than race” argument are more interested in stopping race-based affirmative action than in helping low and moderate income students.

Goals and Quotas Are Not the Same

Opponents of affirmative action general are critical of both goals and quotas that are associated with affirmative action.  In addition, they mistakenly equate these two policies.  Regardless of what one may think of affirmative action, it is critical to understand the difference between goals and quotas.  Since goals are a specific part of affirmative action procedures of the Office of Federal Comtract Compliance Programs, let me try to explain.

Office of Federal Contract Compliance Programs  Affirmative Action Guidelines

The largest federal affirmative action program is based on Executive Order 11246 issued by President Lyndon B. Johnson in 1965.  Guidelines to implement this program were first issued in 1968 and revised in 1971.  Federal contractors and subcontractors, excluding those in construction, who have 50 or more employees and a $50,000+ federal contract are required to develop an affirmative action plan within 120 days of receiving a contract.  Failure to develop and implement an affirmative action plan could result in a contractor  losing the current contract and being declared ineligible to receive additional contracts.  This is called being “debarred.”

Contractors must first conduct a utilization study of their employees.  Basically, they must count the number of women and minority employees in each department and in each occupational category and  be able to say that “X% of skilled blue-collar workers in the maintenance department are black” or “Y% of the managers in the sales department are Hispanic.”  The employer must also determine the percentage of minority and female employers who are in the “availability pool;” i.e., those who qualified and potentially available for the job.

It is then necessary for employers to compare the actual distribution of minority or female employees in a specific job category in a specific department to the minority and female distribution in the availability pool.  If the actual employment is equal to or greater than the availability (e.g., the availability of women sales managers is 15% and 15% of the sales managers actually employed are female), the employer is “in compliance.”  If, on the other hand, the actual employment distribution is below the availability figure (e.g., only 5% of the sales managers are female), the employer is “underutilized.”  The employer must follow this same procedure for each job category in each department.

If a contractor is underutilized, a set of goals and timetables must be included in the affirmative action plan.  An appropriate  goal would be to hire enough qualified female or minority employees to reach the percentage distribution stated in the availability pool.  In the above example, the contractor tries to hire enough female sales managers so that 15% of all sales managers are female.

The timetable must be based on the conditions facing that specific contractor.  Employers with big turnovers might be able to reach the goal in a few months, while one with little turnover might take a few years.  Contractors in expanding industries would have shorter timetables than those in stagnant or contracting industries.

Next, the contractor must specify procedures to achieve the goal.  This means trying to “cast a broad net” to encourage diversity among those who apply for the position.  Employers should  publically advertise jobs rather than relying on informal networking.  Advertisements should contain a statement like “Equal Opportunity Employer; Women and Minorities Encouraged to Apply.”  Some advertisements should be placed in publications targeted at qualified women and minorities.  Employers should  send letters to well known  women and minorities in the field asking for referrals, send letters to schools who train large numbers qualified women and minorities, and make recruiting trips to conferences that might be attended by qualified women and minorities.  In other words, employers must go out of their way to increase the hiring pool of  potential women and minority candidates.

After the contractor designates an employee as the affirmative action representative who oversees this process, the affirmative action plan is then complete.  It is important to realize that the contractor is not required to submit the plan to the Office of Federal Contract Compliance Programs (OFCCP) for approval; the plan must simply be kept on file in the contractor’s office.  However, the contractor is expected to make a “good faith effort” to implement the plan; i.e., they have to try.

What happens if the contractor fails to meet the goal specified in the plan?   Does the contractor face the loss of the federal contract because a white male was hired rather than a black female?  Probably not?

First of all, no one but the employer is likely to know that the goal was not met.  The OFCCP does not review the hiring process of each employer for each year.  More importantly, the contractor was only required to make a good faith effort to achieve the goal; not to actually succeed.  In the unlikely event that the employer was ever investigated by the OFCCP, all the contractor would have to do is show that they followed the procedures to encourage women and minorities to apply for the position.  If the contractor can demonstrate that the white male who applied for the administrative position was more qualified than the black and female applicants, there is no problem.  Affirmative action guidelines require meritocratic hiring.  Preferential treatment or quotas are illegal under these guidelines.

Although these affirmative action regulations involve a certain amount of effort and cost on the part of federal contractors, they do not force contractors to hire unqualified people, nor do they permit reverse discrimination.  All contractors have to do is offer reasonable explanations of why their employment levels are below the percentages in the availability pool.  Some contractors, however, may pressure personnel officers to illegally hire unqualified underutilized minorities to avoid problems with  OFCCP officials.  It is difficult to determine how extensive this practice is.

I have gone into so much detail about the OFCCP guidelines for several reasons.  First, they are the least known of all affirmative action policies.  Second, affirmative action critics usually don’t discuss them.  Third, they are the least controversial since the final hiring decisions are supposed to be meritocratic and companies are only required to try to meet their goals. Employers are only required to show that they have cast a broad net to find qualified candidates for their positions. Finally, they affect more employees than other affirmative action policies.

Hiring and Promotion Quotas

The most controversial of all affirmative action policies are “quotas;” i.e., programs that reserve certain positions for  qualified” minority or female candidates.  This specifies a hiring or promotion floor; i.e., at least that number of women or minorities must be hired or promoted.  This is different from the historic use of antisemitic quotas as a ceiling; i.e., no more than a certain number of Jews may be hired.

Although the concept of quotas is quite controversial, one thing is clear:  quotas and  goals are not the same.  First, especially in court-imposed quotas, the employer or school must hire or a minority or female for that position, under penalty of law.  If no qualified minority or woman is found, either the position must remain empty or the employer must seek special permission to hire or promote a white male.  In the case of goals, on the other hand, the employer must merely make a good-faith effort to hire or promote a qualified minority or woman; if none is found, there are no legal consequences and a white or male may be hired or promoted.

Second, in a consent decree with quotas, a white male with superior work experience or credentials, could be passed over in favor of a qualified, but less experienced minority or female applicant.  When goals are being used, a more qualified white male must be hired or promoted over a less-qualified minority or female applicant since the final hiring must be meritocratic.  Affirmative action critics who say that goals and quotas are the same are either ignorant or intellectually dishonest.

The 1972 Equal Employment Opportunities Act made it legal for courts to impose hiring and promotion quotas on employers that were found guilty of discrimination.  Quotas could also be used as a remedy as part of consent decrees, or out-of-court settlements in discrimination lawsuits.

Before a quota can be imposed by a court, a group of minority or female employees generally sues an employer for race or sex discrimination. One possible outcome of these law suits is that the government and plaintiffs enter into a consent decree with the employer that contains a quota system of hiring and/or promotion. The quotas might require the hiring of 1 black for every five whites until the percentage of black employees reaches the level of blacks in the availability pool.

Even under quotas, employers are not forced to hire unqualified people.  Generally, the employer has some criteria which makes the prospective employee “qualified;” e.g., an educational credential, a minimum score on a test, a minimum level of experience, etc.  Employees who don’t meet these criteria cannot be considered for the position.  Hence, all those who do meet the criteria are seen as being able to carry out the duties of the position.

Next, the qualified whites (or males) are ranked from “most qualified” to “least qualified” in terms of the criteria.  The same is done for the qualified minorities (or women).  If only 10 people can be hired or promoted and there is a 50-50 quota, the top 5 whites and the top 5 minorities are chosen.  Even though all of the selected minorities (or women) are qualified, it is possible that some of them may be less qualified (i.e., their scores are lower) than some of the whites (or men) that were not chosen.  For example, a woman who scored 85 out of 100 might be promoted while a man who scored 86 would not.  While such a decision has a great impact on that particular man, such small differences in scores would not warrant the conclusion that the man would have done a better job than the woman.

There is a widespread belief, especially among whites, that quotas are very common across the country.  However, it is getting more and more difficult for hiring and promotion quotas to meet the test of constitutionality.  A variety of court decisions has resulted in a set of “strict scrutiny” criteria that must be met.  First, there must be a “compelling state interest” to justify a quota.  This is usually interpreted as combating intentional race or gender discrimination when no other policy is likely to work.

Second, the quota system must be “narrowly tailored” which is generally interpreted as not “unduly trammeling” on the rights of white males.  The consent decree cannot require that 100% of new hires be minorities or women since this would make it impossible for white males.  In fact, the quota proportions must have some connection to the availability pool. In addition, the quota system cannot be in effect indefinitely; e.g., it may be in effect until the percentage of minority/female employees reaches a percentage equivalent to the availability pool.

In fact, court-imposed quotas are few and far between. It is generally illegal for an employer to voluntarily adopt a quota hiring system without getting court approval.   Courts impose quotas only when there is a long history of explicit discrimination and when the employer fails to take corrective action; i.e., quotas are generally seen as policies of last resort.  The conservative U.S. Supreme Court has issued numerous anti-affirmative action rulings in recent years which restrict the scope of quota systems.  For example, it is unconstitutional to use race or sex as part of the criteria in the decision to lay off workers.  Affirmative action supporters fear that the Supreme Court will continue on this anti-affirmative action trend.