The Supreme Court’s Affirmative Action Case Reminds Us Why #WeNeedDiverseBooks

Supreme Court of the US

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.


  1. Ugh, #Beckywiththebadgrades! So glad this turned out the way it did and what energy and time she dedicated to this, chanelled differently she could perhaps have done great thingsy interesting to read your perspective on it with your legal expertise especially since I know little about it and less about US law. And I definitely agree that literature can help with empathy, which I think some study also showed? Can’t remember where I read that. But that’s why we are #DiverseBookBloggers 🙂

  2. I love coming here to see your thoughts on legal issues and how they connect to reading/literature. It’s fascinating. I can’t help but wonder about Becky, whether it was her or her family that chose to pursue this. I mean they can’t really be separated when you’re 17 and not legally adult, but it makes me think of others that have been turned into super-conservative mouthpieces like the bakers and County clerks.

  3. I was very glad at how this case came out. Mostly relieved because these days you never know about how Supreme Court rulings are going to go. Glad to hear they are going to take a look at racial gerrymandering. Fingers crossed for a good outcome on that one. As far as diverse books go, they certainly do help but since, as you note, so many Americans don’t read, I think we need more diverse movies and television too.

    1. I’ve been more optimistic about the Court since Scalia’s death. Interestingly, most of the cases I care about would’ve turned out the same way had Scalia still been there (although I wonder to what extent he was able to sway Kennedy and worsen majority opinions).

      I think diverse movies and television are important too, but there’s something special about books. We get a deeper look at the characters in books than we do in other forms of entertainment.

    1. I don’t know much about it other than what’s in the opinion, but it’s definitely an interesting reaction to the Hopwood case (which was a successful anti-affirmative action case in the 1990s). I don’t think the legislature of my state would’ve done something like that.

  4. I might add that, if the only books she ever read were the Harry Potter books, she might have been engaging in some magical thinking. To me the horror is that she found lawyers willing to advance this argument. But as Theo says, it’s Texas. Maybe they should secede. I, for one, would be happy to let them go.

    1. I’m sad you think this. As a white Texan, I don’t agree with Abigail. Maybe it’s because I love to read, but I still wouldn’t judge an entire state by a few.

      1. I wouldn’t want my state to be judged by a few either–or by my state’s horribly regressive legislature! It’s a large and diverse place, even if it seems to only make the news for terrible things. That’s the nature of news.

        1. Sadly, you are correct that is the nature of the news. It’s something I’ve gotten used to and work hard with my peers to try and make an active difference going forward. Loved your post though. I truly believe that being an English major and being tasked to read books from all over the globe has made me a more compassionate and open-minded person. I’m definitely not perfect, but I feel like reading gives people, who aren’t able to traverse the globe and see human experience first hand, a free plane ticket in some small way. Thanks for sharing!

          1. I’m glad you liked the post! I think reading has made me a more compassionate person too. I truly believe we’d be better off if more people read books.

      2. Didn’t mean to offend the many wonderful people in Texas. Ann Richards, Molly Ivins and Jim Hightower all inspired me in my search for reason and justice.I made the comment after reading about another Louis Gohmert rant, and I confess I was ticked off. I’m afraid my state, which occasionally talks of secession too, gets comments from the right wing that are as offensive. I should have been more careful.

        1. No worries, you didn’t offend me. I just like to let people know that there are people of all beliefs here, and that it’s slowly getting better. I totally understand being frustrated. We live in difficult political times, I just like to show solidarity even though I live in a very conservative area. Best wishes!

    2. Texas has gotten quite a bit of attention lately for negative news, but it’s a large and diverse state. There have been many times, especially in the education context, where I’ve been pleasantly surprised to see that they are much more progressive than my state (PA, which is a challenging place to promote progressive legislation).

      I agree with you that it’s disturbing that there were lawyers willing to advance this argument, but they did get to the Supreme Court more than once. What a waste of time and resources!

    1. Texas has been getting more than its fair share of negative news, especially this Supreme Court cycle. I’m glad Fisher and Whole Woman’s Health turned out the way they did. 🙂

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