One of the nastiest two word phrases in American English has reared its ugly head again—Affirmative Action.

Contrary to what many people believe, this does not necessarily mean that if, for instance, 12% of Americans are black, 12% of jobs of a particular nature will be occupied by blacks. White people in particular have often complained that, by opening up opportunities for blacks or other minorities (including women…never mind the fact they are a majority in this country) white men with better qualifications are discriminated against.

The history of race relations and discrimination in this country is replete with tales of blacks being denied jobs and educational opportunities solely due to their race. Of course much worse actions against blacks were prevalent but we’ll set those aside for our purposes here.

It was common for a time that after the passage of the Civil Rights Act of 1964 outlawing racial discrimination in hiring that strict quotas were imposed in some instances in order to redress these prior injustices. But what is currently at stake before the Supreme Court of the United States (SCOTUS) has nothing to do with quotas, strict or otherwise.

Fisher v Texas involves a young lady, Abigail Fisher, who applied for admission to the University of Texas at Austin. That school automatically admits graduates of the state’s high schools who finish in the top 10% of their classes. Ms Fisher, though with good grades, was not in the top 10%.

Eventually after the entire admissions process was complete, she was denied admission.

Now the University has very exact and published standards for admission.

All students applying must submit information under

Academic Achievement

  1. Class Rank
  2. Test Scores
  3. High School Classwork            


Personal Achievement

  1. Written Essays
  2. Activities Information
  3. Letters of Recommendation

Furthermore, recognizing that some students may have special factors they would like to offer for consideration, the University adds this category, direct from their web site:

Special Circumstances

Special circumstances in an applicant’s life sometimes help an application reviewer to get a clearer picture of the applicant’s qualifications. The special circumstances we consider include:

  • Socioeconomic status of family
  • Single parent home
  • Language spoken at home
  • Family responsibilities
  • Overcoming adversity
  • Cultural background
  • Race and ethnicity
  • Other information in the file

If you’d like us to consider a special circumstance in your life, you may submit optional Essay C or send us a letter detailing your situation.

If you’d prefer that someone else tell us about the circumstances, have that person write a letter on your behalf. Sometimes a letter from a doctor or a counselor is also appropriate when communicating details about an individual situation.

Ms Fisher, who is white, alleges that due to these factors, a student who was non-white was admitted and she was not though her academic qualifications were superior.

I have not seen a transcript of the trial proceedings to see if there is evidence that can demonstrate her allegation. But notice there are eight special circumstances listed and race is but one of them.

Is it possible another student was admitted with inferior academic achievement but who had an overwhelmingly compelling story of overcoming adversity?

SCOTUS looks at matters of equal protection under the Fourteenth Amendment with what is called strict scrutiny. Essentially that means there must be an extremely important government and public interest in order for any policy discriminatory on its face to survive.

The Case of Grutter v Bollinger, decided in 2003, addressed similar facts in admissions policies at the University of Michigan and its Law School. The Court acknowledged the importance of diversity within our colleges and noted that race was only one factor that might  boost an applicant’s status from “rejected” to “accepted”

In 1978 in the case of California v Bakke SCOTUS overturned a policy of the University of California Berkeley that set aside 16 positions out of 100 in its medical school admissions class for blacks. That was a clear instance of an actual quota.

The Court in the Bakke and Bollinger cases, though capable of issuing a majority ruling, has been quite in conflict over the rationale for the decisions, with multiple opinions for the majority ruling being written.

In forming your opinion of these case, please do not overlook the obvious. If there are people equally qualified on an objective basis (class rankings, test scores, etc.) there simply must be a subjective element or elements to be a tie-breaker when openings are limited.

In the current case in Texas, there are eight potential tie breakers.

My personal experience may be somewhat instructive.

In early 1976 I applied to WVU’s College of Law for admission. At the time, as it was explained to me, applicants were placed in one of three categories.

Group A had combined undergraduate grades and Law School Admissions Test (LSAT) scores above a certain point on the scale established by the school and were automatically admitted.

Group B had a combined score below a cutoff point on that same scale and were automatically rejected.

Group C (the great unwashed) fell somewhere in between. I was in that group.

My undergraduate degree in 1969 was accompanied by a grade point average slightly below the collective IQ of Rush Limbaugh dittoheads. (it was a 2.0) My LSAT score was in the 99th percentile, that is, only 1 % of other test takers had exceeded it.

Among options available to persuade the admissions committee of one’s worthiness if in Group C was an interview with the dean. I chose that option.

Precisely, my interview was with the then acting dean and one of the professors. Along with other questions I was asked this, ” It is obvious you have the raw potential to do well. But you had that potential seven years ago and did not live up to it. Why should we believe you will do so now?”

My answer was to admit my prior immaturity and lack of focus in my studies. I informed them that I was getting married in the summer. My wife-to-be had given me great support in trying to become a lawyer, my long time dream. I pointed out that my recent activities and my pending marriage demonstrated much greater maturity on my part than I had exhibited 7 years earlier.

The suckers bought it! No, they were not suckers but I did get my notice of acceptance soon afterward.

Now were they looking for another white guy? Doubtful since women were still a distinct minority in law schools at that time and since the number of blacks admitted in my class just about matched the percentage of blacks in the state. Perhaps they wanted older students to mix in. At 29 when I started I was certainly that.

I don’t know for certain. I do know I justified their faith in me, carrying a good grade point average while working two jobs, being married and having our first son, and serving as president of my law fraternity.

My own example has nothing to do with affirmative action. It is an example of how other factors enter into an admissions decision.

Look at the University of Texas standards again. Race is only one of them and carries no more weight than being the child of a single parent. So long as that holds true, I believe affirmative action of that nature should be sustained.

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  • little_minx  On March 6, 2012 at 10:15 PM

    Have you considered submitting a version of this commentary to a newspaper? It needs to be more widely read.

  • umoc193  On March 8, 2012 at 3:00 AM


    Hadn’t thought about this one in particular. I do have letters in the local paper every month or so and a couple have been treated as op-eds. Any suggestions about how to submit it or to whom?

  • little_minx  On March 9, 2012 at 11:12 PM

    Local paper knows your work, apparently likes it, so that’s always a possibility. Or perhaps you could email your editorial board contact at ROW…

    BTW, you may need to prepare a shorter version, as the main concern for publications is, frankly, almost always length — not art ;-)))

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