American Reason: The Ten Percent – Matt & Vik debate the case of Abigail Fisher vs. UT Austin

Matt Sowada: On Oct. 10, the Supreme Court heard oral arguments in the case of Fisher v. University of Texas at Austin. At issue in the case is whether or not the University’s use of “race” as a factor in undergraduate admissions is permitted under the Equal Protection Clause of the Fourteenth Amendment. While we’ll likely have to wait some time to hear the courts judgment on this matter, it just strikes me as bizarre that we would be having this discussion in the 21st century. The notion that a civilized people would consider skin color or ancestry as relevant criterion for admittance to any kind of public institution seems to me to be fundamentally incompatible with our moral requirement to acknowledge the individual dignity of all human beings.

I understand the importance and utility of diversity. A vibrant and useful intellectual or creative exchange is best served by the presence of as many perspectives as possible. It behooves any institution to expose its members to as many cultural and intellectual traditions as it possibly can. It just seems very racist to me that someone would consider one individual more likely to be able to provide a unique perspective than another individual based on their skin color or ancestry. I am being very genuine in my question here: What am I missing? I thought the imperative to look past such features to judge people solely based on the content of their character had essentially become an official American Value at this point.

Vik Patel: I share your sentiment and you are right that diversity does not justify affirmative action. Unfortunately, though, we still live in a largely segregated society. According to The Brookings Institution’s analysis of the 2010 Census data, in large metropolitan areas about 80 percent of Whites live in suburbs leaving the cities themselves with an overwhelmingly minority population. This then leads to segregated school environments, which then also leads to a segregated workforce. For example, according to the National Science Foundation only 3 pecent of scientist and engineers are Black and 4 percent are Hispanic. This social separation leads to differing experiences of American life that correlate with race. Do I think that the diversity that arises from racial segregation is a social good? No, and I don’t think that it justifies the impingement on the rights of individuals like Abigail Fisher from Fisher v. UT Austin. However, this segregation and its history does.

Matt: I am not sure that affirmative action is a just tool for the job of addressing segregation. You reference residential geography as one type of segregation, an issue that I agree ought to be considered. Hasn’t the University of Texas at Austin already taken that into account by automatically admitting the top 10 percent of every high school class in Texas? This means that regardless of the “racial” makeup of your school if you outperform 90 percent of your classmates you will be admitted to UT. The top students from every school are already invited. Doesn’t that work toward resolving that issue without resorting to racial discrimination?

As far as bringing up adult employment statistics, all that I really see that adding is evidence that segregation still exists. No one has argued that we have achieved a flawlessly egalitarian society, or even that we don’t have a long way to go. The issue here is not whether or not segregation exists, it’s whether or not refusing to admit even one human being to a public university based on the color of their skin or their ancestry is a morally acceptable way to address the issue of diversity.

Vik: But the issue here is not restricted to the individual. If the freedoms of an individual are perpetuating or creating a grievous societal ill, then we should impinge upon those freedoms in a directed and limited fashion. I believe that affirmative action is justified when applied to a public institution that has had a history of discrimination and currently services an area that is still segregated in large part as a result of past discriminations. The University of Texas is a prime example of this kind of institution because it has been involved in several cases for past discriminations, some of which made it to the Supreme Court, e.g. Sweatt v. Painter (1950).

As an impingement on individual freedoms, the Ten Percent Plan is even worse than affirmative action. Every year, the vast majority (somewhere around 80 percent) of incoming freshman to UT are admitted under the Ten Percent Plan. Abigail Fisher scored right outside of the top 10 percent of her graduating class at a high school that performs a fair bit above the average in Texas, which means that many students who were probably less qualified and less prepared for college were admitted ahead of her. With the small number of spaces left over by the Ten Percent Plan, it is unlikely that Abigail Fisher would have been accepted even in the absence of affirmative action as discussed during oral arguments. After Hopwood v. Texas (1996) and Gratz v. Bollinger (2003), schools can only use race as a factor to decide between students whose qualifications are very close and Parents v. Seattle (2007) limited that to only schools with a history of discrimination. In this case, affirmative action by itself would have more justly served all interests than the Ten Percent Plan.

Matt: I hadn’t thought about that point about less qualified candidates, maybe the Ten Percent Plan is more flawed than I realized. That being said, I’m still uncomfortable with individual people like Fisher having to shoulder the burden of the school’s history of discrimination, even if it is legal. She never committed the immoral act for which she is paying the price. If a city loses a discrimination lawsuit brought by one of its employees, that money doesn’t all come from one person’s paycheck. I think society still owes it to itself to come up with less individually discriminatory solutions to the very real issues that you bring up.

Vikram Patel and Matt Sowada are the friendly adversaries behind the twice-weekly ethical debates podcast, American Reason.Find an archive of their shows online at