Abigail Fisher, the plaintiff in Fisher v. University of Texas at Austin, felt cheated out of “her spot” at Texas’s premier public institution of higher education. Why? Because she is white, and UT Austin has a race-conscious admissions program.
Per state law, UT Austin fills 75% of the freshman class with students in the top 10% of each Texas high school, but Fisher wasn’t a good enough student to benefit from that race-neutral program.* Instead, her application went through a “holistic review” for a spot in the remaining 25% of the class. This review considers many factors, including a student’s test scores, essays, community service, leadership experience, extracurricular activities, and “special circumstances,” such as socioeconomic status, family-status, language spoken at home, and finally, race. As Justice Kennedy acknowledged in the Fisher opinion (Fisher II), race is nothing but a “factor of a factor of a factor.”
Honestly, I cringe at how insignificant race is in this calculation (whatever the post-Grutter v. Bollinger view of Equal Protection may require). For many of us, race isn’t a “factor of a factor of a factor.” It plays a large role in our lives whether we want it to or not. In my case, it was the reason TSA singled me out for pat-down searches almost every time I flew between Philadelphia and Boston when I was in law school after 9-11. For others, negative stereotypes of their racial background gives them a reason to fear the police and gun-toting vigilantes like George Zimmerman. It’s the reason some people have been killed.
Race matters more than UT Austin’s “holistic review” (or recent Supreme Court precedent) suggests it does.**
But even UT Austin’s minor consideration of race was too much for Abigail Fisher, who was so unable to empathize with people from different backgrounds — and so unable to see her own faults — that she challenged the review under the theory that race should never matter in college admissions.
Thankfully, she lost. The Court determined that a race-conscious admissions program is constitutionally permissible when the program is a way of obtaining “the educational benefits that flow from student body diversity,” including “the destruction of stereotypes, the promotion of cross-racial understanding, the preparation of a student body for an increasingly diverse workforce and society, and the cultivation of a set of leaders with legitimacy in the eyes of the citizenry.”(Fisher II citing Grutter v. Bollinger, 539 U.S. 306 (2003).
But Fisher — known these days as #Beckywiththebadgrades — won’t be the last person to claim that any minor consideration of race violates the Constitution. These anti-affirmative action cases pop up again and again.
Whenever I see these cases, I wonder what the plaintiff’s bookshelves look like, assuming they have bookshelves at all (the average American isn’t much of a reader). Would these cases be less likely if Americans read more? How about if they read more diversely?
There is evidence that literature promotes a reader’s ability to empathize with others. As Time Magazine summarizes:
Raymond Mar, a psychologist at York University in Canada, and Keith Oatley, a professor emeritus of cognitive psychology at the University of Toronto, reported in studies published in 2006 and 2009 that individuals who often read fiction appear to be better able to understand other people, empathize with them and view the world from their perspective. This link persisted even after the researchers factored in the possibility that more empathetic individuals might choose to read more novels. A 2010 study by Mar found a similar result in young children: the more stories they had read to them, the keener their “theory of mind,” or mental model of other people’s intentions.
I assume that access to books that feature characters from diverse backgrounds — like the ones I included in my list for the Diverse Books Tag — would help people see the world from other perspectives. For readers who live in racially homogeneous communities — sadly, as many Americans do — their only exposure to diversity may be through literature.
It might be too much to hope that literature can prevent people like Abigail Fisher from blaming others for their own problems. However, reading books has other important benefits, including increasing a person’s chance of getting into the college of their dreams.
Then there’d be nothing to sue over.
*It’s worth noting that the Ten Percent Law includes majority-minority schools, presumably resulting in a more diverse freshman class.
**Courts have to be wary of race-based policies. However, there is a difference between a law or policy that seeks to increase diversity versus one that seeks to squelch it (such as Jim Crow laws or gerrymandering). The Supreme Court’s time would have been better spent addressing laws that fall into the latter category rather than revisiting affirmative action after Grutter. UPDATE: I just saw breaking news that the Court will review racial gerrymandering.