By this Christmas, Abigail Fisher will have visited the Supreme Court of the United States twice in four years. Abigail is the plaintiff in a case regarding the admissions policy at the University of Texas at Austin, which, like many colleges around the country, includes race as one factor in its competitive evaluation of prospective students.
Since 2008, Ms. Fisher has claimed she was illegally rejected from the school, as it admitted less-qualified candidates of minority races, thus violating her right to equal protection under the law as defined in the Fourteenth Amendment. With the granting of certiorari—an order of review—issued by the Supreme Court in June, Ms. Fisher and her lawyers have now successfully navigated the United States court system twice, each time provoking headlines and conversation concerning the constitutionality of affirmative action in the United States.
Affirmative action policies originated through the Civil Rights Act in 1964. Provisions ensuring that minorities would receive equal opportunity in hiring and admissions’ processes were implemented to correct systemic racial inequality stemming from 200 years of legalized racism. Though some support these policies as essential safeguards that ensure diversity, 67 percent of the American population now opposes affirmative action.
Whether one objects to it as unconstitutional or merely opposes its attempts at equality as inadequate, it is apparent that affirmative action has failed. Its policies ignore the core issue of this country’s education inequality problem: large funding gaps between public schools for children enrolled in kindergarten through high school. Studies have consistently shown that schools with high poverty students—which are more likely to be African American or Hispanic than any other ethnicity—have about 10 percent fewer resources per student compared to schools with middle and upper class students.
Practically, this disparity results in a shortfall of about $1,200 per student each year. This figure may not seem impactful, but it quickly adds up. As Natasha Ushomirsky and David Williams of the Education Trust point out, for a school of 500 students, there is $600,000 per year in missing resources; for a high school of 1,000 students, $1.2 million is missing per year. Inequalities between poorly and well-funded schools are staggering: outdated textbooks vs. laptops and tablets, broken-down plumbing vs. eco-friendly bathrooms, mismanaged after-school programs vs. varied extra-curricular opportunities—the list continues on and on.
These differences result from a system that funds school districts through property taxes, a most inherently unequal means of determining the subsidization of government-funded education for children. There are wealthy schools for students living in wealthy areas and poor schools for students living in poor areas. The entire public education system is structured on this kind of inequality: some 93 percent of education expenditures are funded through a combination of local property taxes and state taxes.
Students with adequately funded teachers and learning environments have a far greater advantage toward successful application to college than those without. Here, there is a clear violation of equal protection under the law: generating funds for public schools through revenue from property taxes equates the compelling interest of educating a young person with the monetary value of the home in which he or she resides. It is classist, it is wrong, and it is unconstitutional.
The Constitution should be thought of as a social contract between citizens and government. In it, citizens are guaranteed certain benefits and rights for their continued participation in the contract. These rights include the equal protection under the law. The phrase ‘equal protection’ certainly applies here: a publicly funded institution that is systematically underfunded for some Americans but adequately funded for others is not equal. Efforts have been made to remedy this design, such as President Bush’s controversial “No Child Left Behind” policy. Seeking to close the funding gap for disadvantaged students, it failed to do so due to uncoordinated testing requirements and unreasonable demands opposed by powerful teachers’ unions.
Still, some states have successfully passed legislation to correct the problem. Vermont’s Act 60, which equalized public spending across all public school districts, was enacted after the state’s Supreme Court ruled that funding public education through property taxes was unconstitutional. As high school completion rates continue to be lowest among Hispanics and African Americans, every state should follow Vermont’s lead to ensure all Americans participating in the elementary and secondary public education system obtain the same amount of funding and, by extension, opportunity.
Affirmative action does nothing to improve high school completion rates, nor does it assist in attaining additional funding for public schools in any capacity. Affirmative action may increase diversity at specific universities across the country, but general college enrollment increases continue to be disproportionally higher among whites than African Americans or Hispanics, undoubtedly a residual effect from the above-mentioned statistic concerning high school completion rates. It is time for affirmative action to be eradicated because it improperly fosters the idea that it resolves racial inequality in this country, when it so clearly does not.
These are immediate issues that need addressing, and they may be examined in a Supreme Court case this December: Abigail Fisher’s lawsuit. As Regents of the University of California v. Bakke struck down the use of quota systems for minority students in 1978, and Grutter v. Bollinger in 2003 set a limit of 25 years on the legality of affirmative action, Fisher’s case is not the first to challenge the legality of affirmative action policies; even if she wins, it will not be the last.
The specifics of her case are simple: after failing to obtain a spot in the freshman class of 2008 at UT Austin, she brought suit, claiming the university’s affirmative action admissions policy was unconstitutional and caused her harm due to racial discrimination. During her first journey through the lower court system, a U.S. District Judge and the Fifth Circuit of Appeals ruled against her, stating that the policies utilized by UT Austin met the standards of the policies affirmed in the Grutter case. However, a majority of Supreme Court justices disagreed, troubled by the University of Texas’ use of a ‘critical mass’ objective outlined in the admissions policy, which some compared to the illegal Bakke quota system. The Court ruled that the Fifth Circuit had failed to closely evaluate the admissions policy, ordering them to hear the case again. In June 2014, the Fifth Circuit ruled once more in UT Austin’s favor, stating that the “use of race as a holistic factor in the admissions process is permitted” where it cannot otherwise achieve diversity. Fisher appealed, and in June, the Court once again agreed to hear her case, scheduling it for early December.
Though many analysts predict the Court will make Affirmative Action policies more difficult to legally defend, there is no way of knowing exactly how far-reaching their decision will be. However, if the Court were to significantly weaken the constitutionality of affirmative action policies, it will not represent a blow to the education equality movement. Instead, its removal would allow for new policies concerning the restructuring the American education system to take hold. If affirmative action—a system of policies that maintain racial evaluations in a society in which the majority of people desperately want race to be a non-factor in every public sphere—was no longer defended, there would be room for policies that ensure a more naturally occurring diversity stemming from equal funding in education.
It is agreed that diversity is a public good and that it should be sought in every institution; however, naturally occurring diversity is obviously preferable to diversity generated through the selection of individuals based on the goal of creating a diverse group. True racial equality that breeds natural diversity will occur when opportunity to succeed despite one’s race is ensured in every aspect of our society, beginning with the state enterprise of public education.
In Brown v. Board of Education, the Court struck down the policy of separate-but-equal and decreed that purported ‘societal benefits’ cannot be a shield used to safeguard unconstitutionality. Despite the fact that the purported societal benefit at issue here is not a false one like segregation was, the same logic can and should be used to dismantle the constitutionality of affirmative action policies. Affirmative action policies must be eradicated, not simply because they do not conform to the U.S. Constitution, but because they do not achieve the benefits of equality they intend to yield in the first place.