By: Marlen D. Whitley
In the game of football, a 4-3 defense is a simple, yet effective, alignment that, if run properly, prevents an opponent from scoring. In legal parlance, the 4-3 ruling by the United States Supreme Court affirming the constitutionality of the University of Texas’ admission standards prevented entitlement from scoring another victory in the oft debated subject of which students are more suitable for acceptance into the state’s flagship institution.
In a state where football is king, the analogy seems fitting. After the Hopwood decision challenged the use of race as a single factor in admissions, university officials and legislators worked to create the top 10 percent plan- an admissions criterion that would serve to level the playing field. Along came Abigail Fisher who, after surveying the playing field, looked for trick plays in the “anti-diversity” playbook and then sought a competitive advantage by moving the goal posts in her favor.
Abigail Fisher first sued the University of Texas in 2008 after she failed to qualify through a program that admits the top 10 percent of student achievers in their classes to the state’s public universities. Fisher argued that the state’s consideration of race to promote diversity on campus violated the United States Constitution’s equal protection clause of the Fourteenth Amendment. The court ruled the university’s holistic approach to choosing a student body outside of the top achievers, which considers several factors, can stand.
Let’s be clear about a few things- Fisher v. Texas was not a challenge to the use of race in admissions. Rather, it was a cautionary tale of what happens when ill-conceived mathematical reasoning engages with petulance. In 2008, 47 students who had lower test scores than Fisher were admitted to the university. Interestingly, Fisher challenged only the admission of 1 African American and 4 Hispanic students. Somehow, she negated the 42 Anglo students who were also admitted despite also having lower academic credentials.
Now, if the question of whether 5 < 42 had appeared in the math portion of Fisher’s SAT or ACT, I am curious as to how she would have answered. I am equally curious as to why the 168 Black and Hispanics with scores equal to and higher than Fisher simply exited the playing field with their heads held high instead of, like Fisher, challenging the officials, demanding a review from the replay booth and asking for the call to be overturned. The singling out of 5 students of color as undeserving while ignoring the larger number of White students admitted ahead of her belies Fisher’s assumption that White students simply deserve priority over others. Stated plainly, Fisher would have these five students move to the back of the proverbial bus to accommodate her simply because she believes any of the seats they occupied were intended for her- period.
Perhaps the most infuriating aspect of the Fisher saga was her refusal to accept a standard UT offer under which she could have enrolled at the university her sophomore year if she earned at least a 3.2 GPA at another Texas university school in her freshman year. If you couple that fact together with her stated desire to follow in the tradition of her father and sister and UT alumni then it’s crystal clear that Fisher didn’t believe she was denied admission- she truly believed she was denied a birthright. Fisher wanted to be given what she had not earned. She is the walk-on player that stormed into the coach’s office and demanded she be given starter’s minutes ahead of the scholarship players whose extra work and conditioning guaranteed their roster spot.
For years, opponents of affirmative action argued that race had no place in admissions standards and students should be judged solely on merit. The top 10 percent plan came into effect to satisfy the detractors. So this then begs the question as to why Fisher and her team of lawyers refused to accept merit as a standard simply because it worked against her. Ironically, the only way race factored into the case was its selective, intentional use in singling out 5 Black and Hispanic students to serve as the background to Fisher’s “victimhood”.
Fisher and her team would have you believe she was fighting for equality. However, the court saw through this ruse. Perhaps a case for equality could have been made had Fisher challenged the admission of all 47 students. Instead, by trying to unseat only the 5 students of color, Fisher made a losing case for entitlement. Thanks to a stout 4-3 defense of the university’s admissions by the court, the clock has run out on team Fisher and we can only hope this game has ended for good.
Marlen D. Whitley is a former student body president of the University of Texas at Austin, a Dean’s Distinguished Graduate of the College of Liberal Arts and holds a Doctorate of Jurisprudence from the University of Texas School of Law.