Wednesday, December 9, 2015
Why Abigail Fisher’s lawsuit is a modern day Trojan Horse
Today, the Supreme Court will hear arguments in yet another racial affirmative action case involving college admissions. It seems perfectly reasonable for non-lawyers to wonder why these types of cases—cases filed by rejected white applicants alleging a college violated the Constitution by considering race—appear before the Supreme Court so regularly. If I did not teach and write about these cases, I would be left to think that racism against white college applicants is rampant. Why else would the U.S. Supreme Court, the highest court in the land, be hearing so many of these cases? Why else, in the case that will be argued today, would the Supreme Court hear the same case twice? Again, if I did not know all of the specific details of the lawsuit, I would presume that the plaintiff in the case, Abigail Fisher, must have been wronged in some way—why else would she find lawyers and subject herself to the national attention (and ridicule over her less-than-stellar grades and SAT score) that she has endured as people across the nation have debated whether she was indeed qualified to attend the University of Texas at Austin when she applied as a high school student for admission back in 2008.
Actually, once you know the origins of the Fisher v. Texas case, you realize the agenda afoot is more like the Greek mythology story of the Trojan horse. The story describes how, after losing for 10 years in a long war, Greek soldiers were able to take the city of Troy by hiding in a giant wooden horse that was accepted into the city as a gift offering to the goddess Athena. Unbeknownst to many Americans, there has been a multi-decade effort, similar to the effort to overturn Roe v. Wade, to reverse various modern American civil rights laws—in particular, laws relied upon by people of color and women to challenge unconscious and subtle discrimination in employment.
While the success of the theory seemed farfetched when I first started teaching constitutional law 10 years ago, it is much more plausible now. Today, there are four justices on the Supreme Court who already subscribe to the theory that antidiscrimination efforts constitute unfair racial favoritism. In fact, the crux of the theory was used to strike down a key provision of the Voting Rights Act of 1965 a few years ago. The theory itself would actually fit nicely on a bummer sticker—“the government should never consider a person’s race because considering race is racially discriminatory.” Back in 2007, the current Chief Justice, John Roberts, used a pithy version of this idea—“the way to stop discrimination on the basis of race is to stop discriminating on the basis of race”—to end the efforts of two school district—Seattle and Louisville—to be aware of race so that elementary school children would not be taught in racially segregated environments.
The problem with this theory is that civil rights laws consider race yet they are clearly not racial favoritism. Still, incorrectly and perversely, under a constitutional interpretation that all government race consciousness is unconstitutional, civil rights laws would also likely be held unconstitutional. Justice Scalia is already on board with this argument. In 2009, Scalia said an important part of an employment civil rights law is “at war” with the U.S. Constitution. On the other hand, Justice Sotomayor, in a case decided last year, stated: “The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.” As usual, Justice Kennedy falls somewhere in between.
Still, very reasonable people may be confused as to how invoking Martin Luther King’s admonition against judging people by the color of their skin could have anything to do with striking down the very civil rights laws for which Reverend King fought and risked his life. That’s the clever and stealthy part of this legal strategy—it is what is hidden in the Trojan horse of college affirmative action cases like Fisher v. Texas. Feeding off the very genuine stress and concern over their children’s future felt by Americans of all races, the architects of this anti-civil rights strategy are using cases about students rejected from college to fundamentally change the meaning of the 14th Amendment Equal Protection Clause— the part of the U.S. Constitution that was ratified after the Civil War to protect the African Americans who had been enslaved and exploited in this country. These cases are guised as a gift that salves the hurt of disappointed parents and high school seniors who do not get one of the increasingly coveted spots at the handful of very selective universities they think will ensure their children success in the challenging “new economy.”
This particular Trojan horse is not, of course, a gift for a goddess—it is the gift of a scapegoat in a now-familiar form. Again, the scapegoat is the handful of African American students who are admitted to highly selective universities. It is the Black students who have been in the nation’s headlines for the past several months—the small number of Black students at schools like Yale, Harvard Law School, and the most selective public universities like the University of Texas at Austin. The gift is a supposed explanation for why so few poor whites attend these elite colleges or, if your child is a high school senior applying to colleges right now, why the chances that he or she will be admitted to his or her first choice college are so low. But, like the Trojan horse that was actually full of soldiers who jumped out of the gift to do great harm to the unknowing city that accepted it, the idea that racial affirmative action is the reason that poor white children and white children from working class families are absent from American colleges or the reason that high-scoring Asian students are denied admission is only a big and enticing distraction.
With just a little thought, we already know that there is no covert conspiracy by elite universities to deny admission to white and Asian students since such students make up the vast majority of students admitted to such schools. We also know that our nation is facing other extremely pressing issues that range from domestic and international terrorism to climate change, yet I spend substantial time explaining each semester to my law students how the Court’s interpretation of the Constitution has changed since the 1950s and ’60s such that the kinds of racial oppression suffered by Blacks (such as beatings and killings at the hands of police officers) does not violate the Constitution whereas Abigail Fisher’s rejection by UT gets two hearings before the Supreme Court. It is a complicated set of lessons on the law that end with me explaining that the Fisher case will boil down to the comparatively trifling question of whether a university’s admission policy can include the word “race” even if it also includes a much longer list of other non-racial admissions criteria.
While the overwhelming majority (over 80 percent) of UT students were admitted based solely on their grade point rank in their high school, a small portion of students are admitted under the part of the UT policy that does include a single factor permitting (but not requiring) admissions readers to consider an applicant’s race. It even permits positive consideration for the race of a white applicant who attended a predominantly minority school or engaged in activities with nonwhites. In addition, UT’s policy includes five "special circumstances” factors that would certainly detect whether a student is low-income: 1) “the socioeconomic status of the student's family,” 2) “whether the student lived in a single-parent home,” 3) “the language spoken at the student's home,” 4) “the student's family responsibilities,” and 5) “the socioeconomic status of the student's high school.”
Nevertheless, in the run-up to Fisher II (the second time the Supreme Court will hear Abigail Fisher’s arguments), there have already been pundits willing to make the enticing suggestion that assessing the legality of UT’s policy is as easy as declaring that a “white student from a trailer park” adds more diversity than “a wealthy African American graduate of a prep school." I personally agree that the absence of low-income students from America’s top colleges is an important public policy issue. But, it is misleading to suggest that getting rid of the word “race” in UT’s admissions policy is going to fix that problem. If you think about the demographics in this nation, blaming the absence of poor whites on so-called “wealthy Blacks” is enticing but illogical. Because of the historically huge wealth and educational quality disparities in America between Blacks and whites that persist today, there are few “prep school-educated” Black students and even fewer of them are wealthy.
So, what is to be gained from in the Fisher lawsuit? Why make a mountain—literally a federal case—out of UT’s molehill use of race? Why use poor whites and Asians as a wedge? Why suggest that Black and Latino students who are admitted to elite schools are unqualified to be there? Well, for the architect of the Fisher lawsuit, the end-game goal is to hopefully change how the Supreme Court reviews government actions that consider race. Cases like Fisher v. Texas have been carefully orchestrated. The truth is that the plaintiffs (including Abigail Fisher and the plaintiff in the case that succeeded in eliminating a key provision of the Voting Rights Act), the lawyers, and the funding for these cases were all identified and matched by the same person with a long-term agenda to overturn civil rights laws. It is that person—Edward Blum, director of an organization he founded and named “the Project on Fair Representation”—who conceived and backed Shelby County v. Holder (the voting case) as well as Evenwel v. Abbott (another anti-civil rights voting case argued yesterday in the Supreme Court) and who is also behind the Fisher lawsuit. He is on record as saying he searched for over two and half years to find Abigail Fisher so he could go after UT Austin. He also recently funded lawsuits against Harvard and UNC Chapel Hill after searching for rejected Asian American to become plaintiffs.
Once Blum’s group is done suing colleges, it will be one step closer to getting the Court to strike down other civil rights laws in areas like employment. Starting with lawsuits about college affirmative action is a Trojan horse for this “anti-civil rights” agenda. The admitted ultimate purpose is to persuade the Supreme Court to prohibit all race consciousness by government by getting Justice Kennedy to strike down the race-conscious aspect of UT’s policy. If Kennedy strikes down a college admissions policy just because it allows the university to be “aware of” the race of an applicant, it opens the door for a constitutional challenge to overturn other provisions of the Civil Rights Act of 1964. The Civil Rights Act is obviously a law that is aware of race. If the Equal Protection Clause is interpreted to prohibit all race consciousness by the government, civil rights laws will be struck down because, obviously, civil rights laws are race conscious.
By presenting the strategy to undermine civil rights laws in lawsuits about college admissions, those behind the Fisher case hope to have consequences that reverberate far beyond university admissions. What potentially makes this case tricky for the plaintiff side is that while Justice Kennedy is not friendly to affirmative action, earlier this year, he explicitly rejected the idea that “mere awareness of race” violates the Constitution in an opinion upholding a provision of the fair housing civil rights law. But, if despite the fact that UT admits whites like Abigail Fisher at higher rates than all other races, Kennedy is inclined to believe that “upper class Blacks” are somehow keeping poor whites and Asians out of college—if Kennedy says that laws that are “merely aware of” race violate the constitution, more civil rights laws could be on the chopping block. This is why Abigail Fisher’s lawsuit is a modern Trojan horse. If it succeeds before the Supreme Court, Americans may find out that a theory for striking down important civil rights statues is what was hidden inside.