Affirmative Action: At the Intersection of Politics & Education

312 In fall 2012, politics and education will again collide head-on when Fisher v. University of Texas will be heard before the U.S. Supreme Court. The case involves Abigail Noel Fisher who claims she was not admitted to the University of Texas at Austin because she is white.

The eight people deciding the affirmative action case are handpicked by presidents; thus, the direct intersection of politics and education. Supreme Court Justices serve for life or until they decide to retire. There are nine justices but Associate Justice Elena Kagan has disqualified herself to avoid a conflict of interest, because she was the U.S. Solicitor General when the Justice Department filed a brief in the Fisher case with the Fifth Circuit Court of Appeals.

In 2003, the Supreme Court heard affirmative action case Grutter v. Bollinger. The court ruled then that race could be used as a factor in helping the University of Michigan Law School attain more diversity. The difference in the present case, Fisher’s side contends, is that the University of Texas has gone a step further than the Grutter principle by not only using affirmative action to help increase diversity among new admissions, but to accomplish diversity at the classroom level as well. Fisher’s lawyers maintain that the University of Texas at Austin’s affirmative action program in regard to admissions is “blatant racial balancing.” (1)

The 2012 court will review the constitutionality of an affirmative action program utilized to admit freshmen at the University of Texas at Austin, thereby revisiting the use of race in public college admissions and reinserting a charged political issue on the eve of the 2012 presidential election.

A Diverse STEM Workforce Needs Equal Participation

The case also comes at a time when educators and scientists agree the nation must increase the number of graduates in the STEM fields. Three years ago, President Barack Obama stood before a prestigious group of scientists and engineers from the National Academy of Sciences, the National Academy of Engineering, and the Institute of Medicine in Washington, DC. He spoke of the need to invest in science at the federal level, in academia and in industry, and reiterated the well-known fact that the United States has long lagged behind other nations in science education.

Later, Obama went on to say, “American students will move from the middle to the top of the pack in science and math over the next decade. For we know that the nation that out-educates us today will out-compete us tomorrow” (2).

At the start of this year, the President’s Council of Advisors on Science and Technology (PCAST) presented a 103-page report to the president titled, “Engage to Excel: Producing One Million Additional College Graduates with Degrees in Science, Technology, Engineering and Mathematics.” The report highlights the importance of diversification of teaching methods to reach ALL students, particularly women and members of minority groups who now constitute approximately 70 percent of college students, while at the same time being underrepresented among students who receive undergraduate STEM degrees (approximately 45 percent). The PCAST report further states: “This underrepresented majority is a large potential source of STEM professionals” (3).

Dr. Tina Garza, SACNAS executive director, couldn’t agree more. “We keep talking about the U.S. falling back as a leader in science,” she says. “We need to be able to tap into all resources and that means all races and ethnicities. If we’re not active about it, it’s not going to happen. We’re still too ingrained in the old way of doing things!”

SACNAS board member and professor of biology at the University of New Mexico, Dr. Maggie Werner Washburne, adds, “We need to reframe how we are thinking about diversity from the ‘redressing past wrongs’ of the affirmative action laws to equal participation and a clear awareness that our future and the future of our democracy requires an educated electorate, with full participation by citizens from every group. The Fisher v. University of Texas case is based on the idea that only test scores matter. We have allowed our educational system to be valued, based on these outcomes.”

Quality over Quotas: Applying the Grutter Principle

In 1997, the Texas legislature passed the “Top Ten Percent Law,” which required state universities to automatically admit Texas high school students who are in the top 10 percent of their class. One side effect of this law was that minority enrollment increased, perhaps due to the fact that many schools, even in 2012, are still subject to a certain amount of racial and economic segregation.

“The school [UT Austin] adopted a holistic basis for accepting students beyond the ten percent based on SATs, GPA, and a broad range of criteria, some of which could be seen as surrogates for race or ethnicity. It was a broad attempt to ensure that they had the ability to educate not just an elite in their state, but a broad range of students and the positive of this was that, if students spoke up, the student body would also hear from a broad range of experiences at that level,” says Werner Washburne.

Applying the Grutter principle, the University of Texas rose to sixth place nationally in producing undergraduate degrees for minority students. Such a plan was upheld by the Fifth Circuit, based on precedent set by the Grutter case. For example, “in an entering class that was roughly the same size in 1998 as it was in 2008, the enrollment of African-American students doubled from 165 students to 335 students. Hispanic enrollment increased approximately 1.5 times, from 762 students to 1,228 students. Asian-American enrollment also increased nearly 10%, from 1,034 students to 1,126 students.72 By contrast, in 2004, the last year the Top Ten Percent Law operated without the Grutter plan, fall enrollment included only 275 African-Americans and 1,024 Hispanics.” (4)

In 2007, the Supreme Court limited the use of race to assign public school enrollment in the cases Parents Involved in Community Schools Inc. v. Seattle School District and Meredith v. Jefferson County (Ky.) Board of Education. Chief Justice John Roberts claimed that, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race”. (5) That decision limited ways public school systems could maintain racial diversity. Some Justices disagreed with the ruling, including now-retired Justice Stephen Breyer who wrote, “To invalidate the plans under review is to threaten the promise of Brown [Brown v. Board of Education]. (6)

“It's a double-edged sword. We need these programs to maintain diversity, but we don’t need quotas,” says Garza. She knows firsthand how negative quotas can be, even perceived ones. When she was in school she had a predoctorate fellowship from the National Science Foundation, which earned her more money as a grad student. “I often heard, ‘Oh, she got that money because of her last name.’

“I remember mentally, always having to remind myself,” she tells us, ‘I didn’t just get it because I was a ‘spic,’ I got it because I was a very smart ‘spic’!’”

Garza emphasizes, “We have to make sure that whatever platform is utilized does not sacrifice quality.... We need to make sure we select our students because they are competent, not because they are the right color or have the right name.”

Professor Margaret Montoya, a member of the University of New Mexico Law School faculty since 1992, believes the Supreme Court may overturn Grutter v. Bollinger. “The Supreme Court is leaning toward a very rigorous evidentiary standard (regarding affirmative action). In the Fisher case—the original process doesn’t include race—the top ten percent are accepted. From that pool, then race is considered, to promote diversity. What happened then was despite this process, many classrooms had few African American and Latino students in them.”

Furthermore, Montoya foresees a domino effect that Fisher could have in higher education, should Grutter be overturned and affirmative action programs jettisoned. “Financial aid based on ethnicity and race will be affected, and may go away all together,” Montoya explains. “Maybe institutions already have a weak commitment to diversity. Recruitment is already difficult. This could weaken an internal commitment to diversity even further.”

The Supreme Court Is Political

“The real question is: how far will the decision reach?” agrees Werner Washburne. “The Roberts Court has shown a willingness to go beyond the case at hand and significantly extend the reach of their decision. If the reach is extensive, it could have a significant, negative impact on the status quo, including SACNAS and, possibly, further,” she warns.

Her question on the potential reach of their decision is based on the Supreme Court’s 2010 decision in Citizens United v. Federal Elections Commission. In that ruling the high court reversed existing law, thus allowing corporations, unions, and wealthy individuals to donate independently to a Super PAC (political action committee) in unlimited amounts to support the election of their chosen candidate. Further, the court lifted the limit on campaign ads in specific mediums. It affects candidates in state and federal elections. The vote was close, 5–4, with Justices Stevens, Ginsburg, Breyer, and Sotomayor dissenting.

It all goes back to politics and the importance of having an engaged electorate. That ruling has allowed Super PACs to flourish in this current presidential election cycle, with corporate and wealthy individuals contributing millions of dollars to the Super PACs rather than being limited in the amount they can donate to a candidate’s campaign fund directly. Werner Washburne says, “I would strongly encourage all the members of SACNAS to inform themselves on the Citizens United decision that corporations are people and that money is speech. I believe every student should read Justice Stevens’ important and powerful dissent. (7) This decision is having an enormous effect on our elections today—which affects not only the goals of diversity but also the future of Congress, the presidency, the Supreme Court, and therefore, our democracy.”

If the ruling is indeed negative, Dr. George Negrete, professor and associate dean of faculty, College of Sciences at the University of Texas at San Antonio, says it won’t be the end of the world. “I think it will make it tougher to formulate plans and programs to bring in minorities, and that will be true for women as well.”

“I think it’s hugely important to say we must take political action. Our voices need to be heard,” he continues. “The ones who are in charge seat the Supreme Court.”

Indeed five of the current justices are GOP appointees and two of them, Anthony Kennedy and Antonin Scalia, were appointed by Ronald Reagan in the mid-1980s, some four presidents ago. Clarence Thomas was appointed by President George H.W. Bush. President Bill Clinton appointed Ruth Bader Ginsburg and Stephen Breyer. President George W. Bush’s two appointees are John Roberts and Samuel Alito. President Obama’s two appointees are Elena Kagan and Sonia Sotomayor.

SACNAS, Science & Policy

“The members of SACNAS should be politically involved. I think we, as individual members, should be contributing to candidates. We should be finding candidates to run for office,” says Negrete.

Affirmative Action programs were put in place for a reason, and their history of success has been documented. Montoya believes, “When students of color are admitted, we greatly enhance scholarship outcomes and new ways of teaching happen. Consideration of race allowed debate and discussion to enter the classroom. It benefits all society. To discourage diversity is a waste of human capital at the macro level, because we are wasting human capacity.”

For Garza it all goes back to the mission of SACNAS: “Our mission is to promote the advancement of Chicano/Hispanic and Native American scientists to achieve degrees of higher learning so they can find themselves in roles of leadership.” One of the stated SACNAS goals is to increase governmental commitment to advancing Chicanos/Hispanics and Native Americans in science resulting in increased resources, elimination of barriers, and greater equity.

“So what we need our members to continue doing is to achieve those degrees past their bachelor’s because that’s going to give them the credibility to move into positions to drive policy—to help our own communities and help our nation,” says Garza.

Werner Washburne thinks that most likely the ruling will be negative but she’s hopeful for a 4–4 split. Still, she says, “Even if the ruling favors diversity, I hope this is a wake-up call for all of us to rethink and reframe the discussion by bringing in much new social science and cognitive psychology research that informs the field, and by repositioning ourselves and SACNAS as leaders in how to achieve equity at our institutions and in STEM.”

Thank you to Dr. Tina Garza, Dr. Maggie Werner Washburne, Dr. George Negrete, and Professor Margaret Montoya who through phone interviews and email correspondence offered opinions and insight into this issue.

About the Authors

Patty Talahongva (Hopi) is a freelance journalist based in Arizona. She’s a past president of the Native American Journalists Association and is the current vice president of the Hopi Education Endowment.

Ruth Hopkins (Sisseton Wahpeton/Mdewakanton/Hunkpapa) is a writer, speaker, ethnobotanist, former tribal attorney, and science professor, as well as columnist for Indian Country Today Media Network.

References Cited

1. Ajinkya, Julie. “Why Diversity Still Matters,” Center for American Progress, February 23, 2012.

2. Remarks by the President at the National Academy of Sciences Annual Meeting, National Academy of Sciences, Washington, DC, April 27, 2009.

3. “Engage to Excel: Producing One Million Additional College Graduates with Degrees in Science, Technology, Engineering, and Mathematics (pdf),” Executive Office of the President, President’s Council of Advisors on Science and Technology, February 2012, page i.

4. “Revised February 1, 2011 in the United States Court of Appeals for the Fifth Circuit, No. 09-50822, Abigail Noel Fisher; Rachel Multer Michalewicz, Plaintiffs – Appellants v. University of Texas at Austin (pdf),” page 19.

5. Barnes, Robert. “Divided Court Limits Use of Race by School Districts,” Washington Post, Friday, June 29, 2007.

6. Bazelon, Emily. “The Next Kind of Integration,” The New York Times Magazine, July 20, 2008.

7. Accessed June 6, 2012 from


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