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Abigail Fisher, Affirmative Action, and why we need to drop the term 'colour blindness'

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On Wednesday the Supreme Court in America (pictured) heard renewed oral arguments in the ongoing Fisher vs. University of Texas case.

The case, which was originally put forward in 2008, revolves around Abigail Fisher, a student rejected from the University of Texas. Fisher claims that the university's race-conscious admissions policy is inherently discriminatory and favoured less capable minorities over her.

Ms Fisher, who is now a Louisiana State graduate, rests her case on the belief that she was purposefully disadvantaged because she is white. The case has generated dialogue and polarising debate about the Affirmative action policies which grant special consideration in issues such as employment and education to historically excluded groups in America.

Unfortunately Ms Fisher’s case has little to do with affirmative action, because her claims that she has been discriminated against are misguided at best and at worst intentionally misrepresented.

The University of Texas has a two tiered system for dealing with its applicants. The first tier of applicants, which consisted of 81% of the freshman pool for 2008, were selected from Texas residents who graduated in the top 10% of their high school class - an approach which can be argued is ‘colourblind’ (whatever that means).

The second tier is a highly competitive small number of spaces that are left to non-Texas residents and Texas residents who were not in the top ten percent of their classes. Ms Fisher did not qualify for the first tier. The selection process within the second tier consisted of weighting the applicants on the basis of their ‘Academic Index’ and ‘Personal Achievement.’

The Academic Index, according to the University of Texas, “is computed based upon the applicant’s high school class rank, high school curriculum and exam scores”. The Personal Achievement Index is based on scores on two essays, and the Personal Achievement score based upon a review of the applicant’s entire file.

They further state that race is a factor that is considered in a holistic manner in relation to other factors that allow them to decide on an applicant’s success. An example used was “a white applicant who is president of a predominantly African-American high school and an African-American applicant who is president of a predominantly white high school ‘bring an additional aspect of diversity when one considers the relative rarity of being a student leader who can reach across racial lines’ ”.

All of these statements by the university, compounded by the fact that within the second tier of applicants the students with lower test scores who were chosen over Ms Fisher were five minority (black and Latino) students and 42 white students, call into question the arguments made that insist race was a deciding factor for Ms Fisher. Another 168 black and Latino students with grades as good as or better than Fisher's were also denied entry into the university that year. Ms Fisher seems to have mistaken her dreams for entitlement and is now being used as a face for a conservative backed campaign that is taking a very ahistorical view of social policy in the United States.

The case, which has been heard for the second time by the Supreme Court, falls neatly into the contemporary narrative that policies enacted to try and fight racial and sexual discrimination have now become outdated and are serving to disadvantage white people, one that reared its head in British politics thanks to the likes of Nigel Farage.

The new mantra of ‘colour blindness’, touted as the most progressive shift in race relations since the abolishment of slavery, is one that is extremely flawed. As much as black and minority ethnic groups would love to wake up one day to a world devoid of discrimination, you cannot wish away years of injustices and stereotypes that are deeply ingrained into society. The implicit biases we all carry around cannot be magically removed because we say so. As Ta’Nehisi Coates of the Atlantic says “Race is not the problem, racism is”.  The only people who can be colour blind are those for whom race never comes into question.

Within the UK, we have our own versions of helping out historically disadvantaged groups such as Positive Action. Positive Action is an initiative under the 2010 Equality act, which encourages recruiters to reasonably facilitate the representation of groups with particular protected characteristics when they are underrepresented in a specific sector of society. For example an education employer could use Positive Action as a justification for recruiting more men in a school staffed by mostly women. This does not mean that the employer should accept subpar applications from men just because they need to fill quotas.

The harsh truths about diversity laws in the UK is that they upset the status quo, one which has been tethered firmly to white men (obviously not in all cases but the point still stands). The results of the shifts in that status quo are an inevitable collection of different kinds of people being put into competition for places they usually would not be considered for. This could have been due to overt or subconscious bias by an employer, but both need to be addressed.

Again this does not mean minorities and women without merit are stealing all the jobs; if your first thoughts about the diversification of our workforces and universities are that they are only coming about from the lower standards expected of a certain group then you must take that thought process to its logical endpoint. That is, the reason that group was underrepresented in the first place is not because of socially created barriers but a testament to the underdeveloped ‘nature’ of that group, or some other ridiculous argument.

I am not trying to shut down dialogue about discrimination laws - how do you classify who needs help and in what form? The Fisher case has succeeded in one of its goals; it has sparked a conversation about affirmative action policies, which some could argue are a misguided way for tackling underrepresentation. The University of Texas can continue to reap the benefits of a diverse student body from its ‘colourblind’ ten percent programme on a crucial caveat - the pre-collegiate educational system within the state must remain fiercely segregated. Questions must be asked of why minority students are more likely to attended poor schools in poor areas. They seem to only be interested in addressing the problems of inequalities at its later stages. Opponents of affirmative action also propose it adopts the consideration of class instead of race when addressing inequalities, but historical legacies of the United States cannot possibly allow for the easy divorcing of class from race.

These are all conversations that need to be had, but we must as a society avoid the pitfalls that lazy rhetoric such as ‘colour blindness’ would lead us into.




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