The Unending Attack on Affirmative Action

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Nearly 60 years after Brown v. Board of Education eliminated the “separate but equal” doctrine that legalized segregation in the United States, proponents for preserving the gains of the milestone victory are still fighting.

The Supreme Court ruled recently on the reverse discrimination case, Fisher v. University of Texas, sending it back to the lower courts. In 2008, Abigail Noel Fisher filed against the University of Texas claiming that she was denied admittance because she is white.
The Supreme Court decision neither supports nor denounces affirmative action in practice, but it strongly encourages the lower courts to reconsider the initial ruling, which was in favor of the university. This raises several questions: what will be the result of further review by the lower courts? Does the Supreme Court’s ruling implicitly affirm the presence of reverse discrimination in the case? Is this the end of affirmative action?

Reverse discrimination is unequivocally the red herring in all anti-affirmative action discussions. It attempts to draw sympathies for white people through the argument that affirmative action has subjected them to the same degree of racial prejudice and discrimination historically exacted on people of color.

In a YouTube video posted by Fair Representation, a nonprofit organization that funds pro bono litigation against affirmative action policies, Fisher spoke on her supposed experience of discrimination:
There were people in my class with lower grades who weren't in all the activities I was in, who were being accepted into UT, and the only other difference between us was the color of our skin…I was taught from the time I was a little girl that any kind of discrimination was wrong. And for an institution of higher learning to act this way makes no sense to me. What kind of example does it set for others?
Fisher’s plea and question are met with a resounding WTF from people of color and in particular, women of color who are subjected to double and triple jeopardy. Critical race feminists in particular, have argued how women of color are erased from discourse on race, sex and gender. Affirmative action debates continue this practice in the omission of women of color.

Laura M. Padilla’s article for Fordham Law Review, “Intersectionality and Positionality: Situating Women on Color in the Affirmative Action Dialogue,” addresses women of color and their erasure, the realities of their discrimination, the constitutionality of affirmative action and why women of color deserve support.

In general, women of color continue to be economically disenfranchised. Lower wages, poverty and single-headed households all contribute to their remaining at the bottom. Education provides the most viable means to attain economic security.

Yet, while women are pursuing higher education in larger numbers, women of color still fall behind white women. The costs for college persistently skyrockets and further excludes women of color who cannot afford to pay. And if acquiring an education without an income is difficult, advancement to higher paying jobs without an education is even more challenging.

Therefore, one of the goals of affirmative action is to make opportunities to attend college more accessible to women of color. Claims of reverse discrimination insult the struggles women of color endure simply to have a fighting chance.

Reverse discrimination assertions endeavor to de-legitimize affirmative action by painting it as “racial preference” or “racial entitlement,” while ignoring the reality that white privilege is the embodiment of both. Civil rights think tanks like the African American Policy Forum demonstrate through animation how historical discrimination, i.e. white privilege creates an unequal playing field in favor of whiteness. Organizations like Understanding Prejudice, an educational resource site, aim to address the myths surrounding affirmative action.

Coded language like "racial preference" and "racial entitlement" attempts to conceal the hostility and anger many whites feel, in addition to masking the perception that affirmative action poses a threat to their legacy of privilege.

Consequently, white privilege stands on its privatized soapbox and delivers the news that it will not be moved. White privilege ideology asserts that it will remain central to the discussion on race relations, by any means necessary; white people will not be left out.

At the moment, this is cause for alarm because by any means necessary includes conservatives appropriating methods from past civil rights cases to argue against affirmative action. As ProPublica astutely argues, conservatives have built the image of the perfect plaintiff in Fisher. Taking cues from NAACP, which used the same tactic to appeal to public opinion and challenge Jim Crow laws. This strategy carried over into the Civil Rights Movement in the form of nonviolent resistance and politics of respectability.

In truth, reverse discrimination stands in as a more benign term for diminished overrepresentation. If diminished white overrepresentation were the preferred term over reverse discrimination, attacks against affirmative action would not nearly be so strong. The power to construct coded language like “racial preference” instead of affirmative action or “reverse discrimination” instead of diminished overrepresentation galvanizes assaults on race conscious programs.

The concept of diminished overrepresentation illustrates how white people remain the overwhelming majority. As a result, any call for a colorblind Constitution will not diminish the significance of race. It will not dismantle the structure that created and sustains race. It will not make voting, education, contracts, or employment more accessible for women and people of color.

A colorblind approach to the Constitution will not do these things because there is an inherent racism within colorblind policy. Colorblind racism or the “new racism” simply rearticulates racist ideology in a way that shields prejudice and the agenda for white supremacy. As Eduardo Bonilla-Silva articulates in Racism without Racists: Color-Blind Racism and the Persistence of Racial Inequality in the United States, the use of coded language like “work ethic,” “merit,” “equal opportunity” and “individualism” are used persuasively to “softly” maintain racial order:
Much as Jim Crow racism served as the glue for defending a brutal and overt system or racial oppression in the pre-Civil Rights era, color-blind racism serves today as the ideological armor for a covert and institutionalized system in the post-Civil Right era. And the beauty of this new ideology is that is aids in the maintenance of white privilege without fanfare, without naming those who is subjects and those who it rewards…Thus whites enunciate positions that safeguard their racial interests without sounding “racist.”
Under this mindset, holistic approaches to college applications would be desirable to white people if it meant they were entirely merit-based and everyone was evaluated on their grades, test scores, essays, extra-curricular activities and legacy. Socioeconomic status, family structure, language, gender and races – all considered in applications to UT – would be completely disregarded without affirmative action.

The University of Texas awards automatic acceptance to all applicants who graduate at the top 10 percent of their class. Because Fisher didn't make the cut, she was bumped into the pool of applicants who are evaluated based on two areas: 1) grades and test scores, 2) personal achievement index (essays, leadership, activities, service and “special circumstances” which includes socioeconomic background, family structure, language and race).

It is not true that Fisher was not admitted to UT because she is white. ProPublica points out that according to court filings, even if Fisher had received points on her application for her race, UT still would have denied her admission.

Moreover, 47 students whose test scores and grades were lower than Fisher’s that year, were offered provisional admittance. Only 5 of those applicants were black or Latino, while the remaining 42 were white.

However, Fisher and Fair Representation did not mention these details in interviews, nor did they mention the 168 black and Latino students whose grades were as good or higher than Fisher’s, but were still denied admittance.

Fisher is in fact, a perfect example of a white woman who did not get into her first choice school, the school where she expected to continue familial legacy, but was admitted to her second choice school. Fisher attended Louisiana State University, graduated and works in finance.

So what has Fisher lost as a result of her not getting into the University of Texas?

She stated to a reporter that her losses amount to not being able to utilize UT’s alumni network and perhaps a chance at a better first job out of college. The damages Fisher seeks if she wins the case amount to $100, the cost of her application and housing deposit.

And just when it seems that enough salt has been thrown on affirmative action’s battle scars, what do the latest statistics and studies show us on who really benefits from affirmative action?

The answer, without hesitation, is white women.

While people of color have benefited from affirmative action, white women have disproportionately excelled as a result of their “preferential treatment.” How ironic, that Fisher, the perfect plaintiff is arguing she has been victimized by the system, when she is included among these statistical successes.

Affirmative action is not only a racial remedy for current and historical racism, it also challenges patriarchy. Women of color and white women have benefited from affirmative action because of this challenge. Fisher and others like her however, deal a double blow in attacking affirmative action. Their accusations should be viewed as symbolic acts of racial violence as well as violence against all women.

Tania L. Balan-Gaubert is a Haitian American native of Chicago. She received her master’s degree in African American Studies from Columbia University and currently resides in Brooklyn. You can find her on Twitter and Instagram @tanialaure.

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