SCOTUS And Affirmative Action: Who Is Abigail Fisher?

The Supreme Court is weighing a decision on Abigail Fisher's affirmative action case against the University of Texas. Host Michel Martin speaks with ProPublica writer Nikole Hannah-Jones about Fisher's motivation and what's behind the landmark case.

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MICHEL MARTIN, HOST:

I'm Michel Martin and this is TELL ME MORE from NPR News. As we mentioned earlier, the Supreme Court is expected to rule this month on some of the country's most divisive issues, including same-sex marriage and affirmative action. Later, we'll hear about a new film that takes a fresh look at attitudes about same-sex marriage among African-Americans. There are some nuances there that might surprise those who thought they've heard it all. That's later.

But first, we want to take a step back and talk more about the young woman at the center of the affirmative action case that's before the court. Her name is Abigail Fisher. Nikole Hannah-Jones, a staff writer for ProPublica, reported on the very interesting story of how Ms. Fisher came to be at the center of this case. We spoke with her earlier.

(SOUNDBITE OF ARCHIVAL RECORDING)

MARTIN: Thank you so much for joining us.

NIKOLE HANNAH JONES: Thank you for having me.

MARTIN: I think the first revelation for many people might be that big cases like this don't just happen by accident, for the most part, that, dating back to the NAACP's challenge of Jim Crow laws, that the group - this is reported in your story - carefully looked for people whose stories would, in your words, elicit both sympathy and outrage and whose lives could withstand public scrutiny. And you say that Abigale Fisher was essentially recruited in the same fashion.

HANNAH JONES: Yes, that's right. Abigail Fisher was recruited by a man named Edward Blum. And he runs a nonprofit called the Project on Fair Representation. And so he was looking for a plaintiff to challenge the use of race in affirmative action for admissions at the University of Texas at Austin.

MARTIN: And why was he so interested in the University of Texas at Austin?

HANNAH JONES: University of Texas had had a top 10 program, where the top ten percent of any high school class in the state could get into the University automatically. And after a 2007 Supreme Court ruling, it reinstated affirmative action. And so he wanted to challenge that because he was saying that the University had been able to meet the goals of diversity without having to take race into account.

MARTIN: Well, also worth noting, he went to the University of Texas. And one thing that may have been attractive about Abigail Fisher is that her sister and her father also went there. Now she hasn't spent a lot of time talking to the media. But there are a couple of videos posted on YouTube by this group that you told us about, the Project on Fair Representation. I'll just play a short clip from one of them. Here it is.

(SOUNDBITE OF PROJECT ON FAIR REPRESENTATION VIDEO)

ABIGAIL FISHER: 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 this set for others?

MARTIN: Any idea how Edward Blum found her?

HANNAH JONES: Well, he begin to put a call out looking for plaintiffs. He wanted to find white applicants who were pretty good students but whose grades just fell below that top ten percent cut-off. And he actually was contacted by Abigail Fisher's father, who was an associate of Blum's. And he told him that his daughter had, in fact, been denied admissions and that he was willing to lend her name to the suit.

MARTIN: Any idea why? I know that you reached out to him. Why is he so interested in this?

HANNAH JONES: Well, he's part of a group of conservatives who believe that the Constitution is colorblind and that programs like affirmative action or like the voting rights act, that actually look at a person's race, that those are discriminatory against white Americans and that they violate the Equal Protection Clause of the Constitution.

MARTIN: We're speaking with Nikole Hannah-Jones. She's a staff writer for ProPublica. We are talking about a piece that she wrote called "A Colorblind Constitution: What Abigail Fisher's Affirmative Action Case is Really About." She's looked into the background of Abigail Fisher and how she came to be the lead plaintiff in this case.

So let's talk now about the substance of her argument. She says that she believes she was discriminated against based on race. She says that non-white people with lower grades and fewer activities got into the University of Texas and she didn't. But you make the point in your piece that it is true that there were applicants with lower test scores and grades than Fisher, but only five of those were black or Latino, but 42 of those were white and that these are not mentioned in her case at all. And you also say that there were 168 black or Latino students with grades as good or better than hers who were also denied admission to the university. So what's her argument?

HANNAH JONES: This question was what initially got me interested in reporting this story. I'm always interested when people claim that they lost a job or they lost an opportunity to attend a school because an unqualified or underqualified minority took their place. I'm always interested in how does one know the qualifications of another student or another applicant. I didn't find it really answered in the reporting that I'd seen thus far, so I literally went to the court filings and found out that that actually was not really the argument that Abigail Fisher was making.

I called Edward Blum and I spoke with him and he admits that he really has no way of knowing whether or not race cost Abigail Fisher the spot, particularly since there were equally qualified black and Latino students who were also denied and there were less qualified white students who were able to get into the school.

But really, the challenge is about whether or not University of Texas can use race at all. And his argument is, just by considering race, that that discriminated against white students, whether or not it ultimately affected their ability to gain admission into the school or not, but just by using race, that was a violation of the 14th Amendment.

MARTIN: Why does he feel that any consideration of race is somehow to the detriment of the fortunes and opportunities of white people and not the other way?

HANNAH JONES: Well, it's very interesting. This kind of way of thinking really dates back to Southern resistance to the civil rights movement. The NAACP and other groups during the civil rights movement were arguing that the Constitution was colorblind and so therefore, legal segregation - segregation by law was unconstitutional.

And so immediately after we started to see civil rights laws overturning the use of race to subordinate African-Americans across the South, you began to see Southerners using that same argument to then resist the race-conscious remedies that were coming out of that, most specifically court orders to use race to desegregate schools. So it's picked up steam, starting in the seventies, moving forward, where you had conservative groups then saying, well, the law says that you can't use race at all and these programs that use race in order to help African-Americans and Latinos are just as discriminatory as legalized segregation was.

MARTIN: I'm still kind of focusing on the fact that there were 42 white students with grades and resumes that were inferior to hers who were admitted to the University of Texas and only five black or Latino students were, but somehow the argument remains that somehow blacks and Latinos were advantaged. And I'm still not getting, how it is that this was argued? Did these facts even come up in the course of the oral argument?

HANNAH JONES: I think it's perplexing to a lot of people who have closely followed the case. And when I've talked to scholars about this, what they say is the conservative justices on the Supreme Court have an interest in getting rid of these race-conscious programs and so they were willing to overlook certain weaknesses in the case. So the fact that white students with lower grades may have gotten in and black and Latino students with better grades did not get in, really was irrelevant.

MARTIN: And what about the progressive or the not conservative justices, the moderate justices? Do they seem to have been interested in these facts?

HANNAH JONES: Well, certainly. Some of them questioned whether the court should have even granted standing to this case in the first place. Abigail Fisher had already graduated from college by the time this case came up. She was working, so there was no ongoing harm. The only thing that she asked for in terms of damages was the return of her $100 application fee and housing deposit. And so there was a lot of concern about this case and the facts of the case by the more liberal justices.

MARTIN: Where did she wind up going to college and what's she doing?

HANNAH JONES: She ended up going to Louisiana State University and she works in finance in Austin. And the only thing that she has said where she believed she was harmed by the University of Texas' decision not to admit her was that maybe she would have gotten a better first job when she graduated.

MARTIN: What reaction have you gotten to the piece?

HANNAH JONES: This piece was very popular. It received somewhere around 500,000 clicks on various websites. I think people were really interested to hear the facts behind the case and to really understand that the assertions around race and what happened to Abigail Fisher weren't really true.

MARTIN: Nikole Hannah-Jones is a staff writer for ProPublica. She was kind enough to join us from our bureau in New York. Nikole, thanks so much for joining us once again.

HANNAH JONES: Thank you for having me.

MARTIN: I do want to mention once again that we reached out to Mr. Edward Blum shortly before the court decision was made, but he declined to comment or to speak with us.

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