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.

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.