9 unelected people from a narrow background about to wipe out affirmative action, a system they ALL benefited from

As soon as this week the Supreme Court could render its decision in an affirmative action case from the University of Texas at Austin where I got my Ph.D.  The case is Fisher v University of Texas at Austin in which Abigail Fisher, a Caucasian female, charged that the admissions system at the UT Austin was biased against her because of her race and that it had admitted less qualified minority candidates. Fisher's accusations of racial victimization at the hands of an affirmative action are tired and old and frankly, not based in fact as a ProPublica article showed.

The charge that affirmative action admits less qualified minority candidates rests on several glib assumptions.  It assumes that every affirmative action candidate is not as qualified as the Caucasian candidates.   It also assumes the no Caucasian candidate could possibly be mediocre and admitted for reasons other than purely merit.  And it further assumes that the process is a zero sum game in which an unqualified minority takes a presumably more qualified white person's spot.  All the charges are faulty. 

There are admittedly two ways of thinking about affirmative action.  One is that it is a possible to compensate for past virulent discrimination against minorities and women.  Another view is that the policies remain a necessary corrective and counterbalance not to past discrimination, but to continuing racial/ethnic, sex, and sexual orientation discrimination in the workplace and in life.  This latter view holds that without affirmative action policies in place, minorities would simply not get what they were due if discrmination did not exist--not a leg up. 

I subscribe to this latter view.  I learned from repeated personal experience that minorities face a special burden.  When one is white and they screw up, it is attributed to the individual.  When one is a minority and they mess up, all of a sudden your personal mistake becomes attributable to the entire race or ethnic group that you represent.  It's really quite something to have to represent your race/ethnicity at all times and in every action.  To have to constantly not just match, but outperform by wide margins one's white counterparts to prove that one belongs is psychologically exhausting, infuriating, insulting, and an unfair burden.

The view that every white person who gets a position, promotion, place of leadership and honor "deserves" it is laughable.  Affirmative action simply means preference.  By that definition, as Sharon Jones notes affirmative action is not just for minorities and the disadvantaged.  Whiteness conveys special privileges that Caucasians are most often unaware of and have the great luxury to never have to think about.  To never have to think of one's race and sex when walking into any room or social/work situation is not something I have experienced.  Believe me, racial minorities and women are made aware, repeatedly, and against their will, of their  status by whites.  As Jones writes: 

However, affirmative action has never been limited to the poor, underrepresented and downtrodden. White, privileged Americans have benefitted from mirror-image policies since the inception of our democracy. Legacy admission standards for the children of Ivy League college alumnae, “good ol’ boy” hiring and promotion practices and neighborhood deed restrictions have affirmatively acted to promote select socioeconomic and ethnic groups. 
A rose is a rose is a rose by any other name.  Just consider the improbable success of the notoriously mediocre student and businessman, former President George W. Bush, accepted to Yale and Harvard because of his father's influence.  In addition, Senator John McCain freely admits that his family's military legacy ensured his admission and graduation from the United States Naval Academy (5th from the the bottom of his class). 

Legacy admissions to universities/colleges, informal social preferences in which your colleagues simply feel more comfortable inviting you to social events (golfing, drinks, dinner in their homes) instead of someone who doesn't look like them, or military legacy are all versions of affirmative action for white people. All of these very common forms of affirmative action will not be invalidated by the Supreme Court anytime soon.

Gerald Roberts, a black associate formerly at Thompson and Knight explained how social relationships prevented black associates from building close relationships with his white colleagues and clients.  He said, “For the most part, they don’t go to church together on Sunday enough, they don’t have dinner together enough, and they don’t play enough golf together to develop sufficiently strong relationships of trust and confidence." And I haven't even gotten into the other structural inequalities produced by social class that intersects with race.

And yet, so many whites in positions of influence and power assume they have gotten there because of merit, not because they were actively and continuously given formal and informal preferences and PREFERENCE over others (who were equally or more qualified)  because of the whiteness of their skin.  "He's such a great guy!"

Are we really to believe that it is only racial minorities and women produce a disproportionate share of mediocre members? The colorblind Constitution argument never worked for me because it is a pure legal fiction; it presumes you are applying colorblind laws and standards to a society that does not see race/sex and treat people differently because of it.  We have not in the past and do not live now in a colorblind society--our laws should be written to deal with that reality, not some rosy utopia in which race/sex does not matter. Have some less qualified minority and female applicants been admitted/selected for promotion somewhere, somehow?  Most likely.  Are we also to believe that situation has not also happened in the admission and promotion of whites?

In assuming that affirmative action is a zero-sum game, that analysis ignores the macro-level benefits, which "displaced" white candidates do not feel concern them.  In Regents of UC v Bakke, Lewis Powell wrote about the benefit of diversity in higher education as a worthy attainment in itself because a diverse campus contributes immeasurably in and out of the classroom in one's education.  No other justice joined him in expressing that notion.  Justice Powell would have been gratified to know that in Gratz v Bollinger and Grutter v Bollinger, 2 of the most recent major affirmative action cases in 2003, the History News Network reports that, "more than twenty Fortune 500 corporations, eighty-five post-secondary institutions, and thirteen high-ranking military and civilian national security officials submitted amicus briefs to support the university."  It's hard to believe all these entities are just filing amicus briefs in support of affirmative action because they are tree hugging, Prius driving, NPR listening, bleeding heart liberals.

Unfortunately, a majority of Powell's brethren on the current Court stand to deal a serious blow to affirmative action polices in higher education, a decision with ramifications far beyond education.  Justice Kennedy recently worried aloud that the Supreme Court, composed of "9 unelected people from a very narrow background" were deciding hot button cases for the nation.   All the Justices graduated from elite institutions and travel in rarefied social circles, and they stand to dismantle the very policy that got them to that position, and I don't just mean Justices Sotomayor and Thomas.   Then again, the Fisher case will only take apart affirmative action for women and minorities; it would leave intact the ongoing affirmative action for Caucasian men.