As a white student sues a university for alleged racial discrimination, is this the end of affirmative action?

An educational system that has historically been set up to reinforce inequalities will take a lot of work to dismantle, says Lola Adesioye.

In 2008, high school graduate Abigail Fisher of Sugar Land, Texas, was disappointed to find that her application to the University of Texas at Austin, a leading public college, had been rejected.

If Miss Fisher had finished in the top ten percent of her year, which she didn’t, she would have been granted automatic admission to the university under Texas’ merit-based top 10 per cent rule, which admits to the public university system any high school student in the state who finishes in the top ten percent of his or her graduating class.

Fisher’s application, on the other hand, went into a pool in which a variety of factors are taken into consideration. Fisher – who is white - believes that her application to the University of Texas was denied because of her race.

On Wednesday, her case against the University of Texas, which she claims violated her rights under the Equal Protection Clause of the 14th amendment, will go up before the Supreme Court for review.

Although Fisher's case has already been seen by lower federal courts, and the constitutionality of UT's actions upheld, it is possible that this case could result in an overturning of a landmark 2003 ruling which allowed the University of Michigan’s Law School to use race in a "narrowly tailored" way to "further a compelling interest in obtaining the educational benefits that flow from a diverse student body" and which set the precedent for UT.

Justice Sandra Day O’Connor, one of the judges who presided over the 2003 case, stated at the time that:

The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.

However, if Fisher and her lawyers have their way the disbanding of affirmative action may happen far sooner than Justice O’Connor predicted.

This potential smackdown of affirmative action is good news for those who believe that racial diversity can be achieved through race-neutral policies alone. In a report released last week researcher Richard Kahlenberg claims that "universities [in states in which race-conscious admissions are prohibited] have implemented creative methods of assuring diversity."

However, this is not what the University of California – which is the largest selective higher education institution in America and operates a race-neutral admissions process and  – says about its own experiences. A case study released this summer revealed that

Although applications to the flagship campuses have doubled since 1995,and all groups have seen reductions in the percent of applicants offeredadmission, African American and Latino admittees have been reduced by 70 to 75 percent at UCLA and UC Berkeley, compared to just 35 and 40 percent for Asian and white applicants.

It goes on to say:

This disproportionate decline reflects the inequalities in the California educational system that fails to prepare African American, Native American and Latino students for highly competitive selection processes irrespective of their intellectual ability or likelihood of succeeding in their studies.

In fact, in a brief submitted to the Supreme Court in support of the University of Texas in this case, the University of California makes it clear that it does not believe that race-neutral policies are sufficient:

"[our] experience establishes that in California, and likely elsewhere, at present the compelling government interest in student body diversity cannot be fully realized at selective institutions without taking race into account inundergraduate admissions decisions…"

While race-neutrality sounds good in theory, I am not convinced that it is even possible in a country which is permeated by racial inequality, and in which racial disparities in the education system remain so stark. How is it possible to measure students in a race-neutral way if race plays such a role in educational outcomes and achievements? In order to have an effective race-neutral process at the top of the education chain, surely that would also require that there is race-neutrality from the outset?

Yet, the fact is that the inequalities that affirmative action originally sought to redress still remain. For example, while segregation in education is no longer legal, it is still ongoing, with some suggesting that it is even worse today than it was in the 1950s. This is partly as a result of continued residential segregation. In New York City, for example, it has been found that:

A student’s educational outcomes and opportunity to learn are statistically more determined by where he or she lives than their abilities.

In America, the achievement gap in education begins before kindergarten and continues through high school where African American and Latino students lag far behind their white counterparts. It would seem strange for there to be no policies at a higher education level which seek to take into account these ongoing racially-based structural imbalances. 

Education has long been considered the pathway to social mobility and in a world that requires better educated and more knowledgeable workers, not having equal opportunity of access to that education presents not only an issue for the individuals, who are more likely to find themselves consigned to lower-income work that requires lower skills, but also for the country which must maintain its competitiveness in the global marketplace.    

Unless more effective policies are put in place to address the deeper issues – racial inequalities, poverty, poor schools and low expectations, decaying urban areas, residential segregation and more – the result of stopping affirmative action can only be decreased chances for minority students and an increasingly unequal society.

Addressing these fundamental issues would have to go far beyond affirmative action in higher education, to a thorough review, revision and reform of the very nature of American society, as regards its minority citizens. It would actually require America to put in a great deal of work to ensure that from the very environment that the minority child is born into is a nurturing and more expansive one.

High poverty areas – in which African-American, American Indian and Latino children are six to nine times more likely than to live than white children – would need to be transformed. There would need to be a deeper level of commitment from the government to the eradication of poverty, which appears to have been overlooked in this election cycle with the focus being on the middle class and wealthy.

Ironically, the more one thinks about what is needed, the more it is clear that lack of educational opportunity and access is itself the main barrier to the solution of these issues. But an educational system that has historically been set up to reinforce inequalities will take a lot of work to dismantle.  

Some have suggested that class-based affirmative action would be a better, or perhaps more palatable, alternative to race-conscious affirmative action. Of course, there are minority students who are not from economically disadvantaged backgrounds, and white students who are. President Obama has said that his daughters, for example, would not need the benefit of a race-based affirmative action. 

However, although the inclusion of class is welcomed and necessary in order to facilitate and formulate a more nuanced look at the various factors that affect opportunity and achievement, this is inadequate on its own. Race and class intersect, yet they are not the same thing and therefore one cannot be replaced with another. Research also suggests that the effect of this would be to increase the number of low-income white students and would not make up for racial inequality. Research from the University of California’s case, has found that:

While African American and Latino youth are much more likely to come from low-income homes than either whites or Asians (53 per cent of African American and 59 per cent of Latino youth are low-income compared to just 22 per cent of white and 28 per cent of Asian youth in California), less than half of the low-income students admitted to the freshman class in 2011 at UC were from underrepresented groups.

I am of the opinion that for as long as race continues to affect people's chances in life, it must be considered as a factor, because it is indeed a factor.

Perhaps if affirmative action is struck down, this would shine more of a spotlight on America’s education system as a whole and more work will be done to narrow the achievement and opportunity gaps between white Americans and minorities from an earlier age. Affirmative action may go away, but the reasons for its implementation still, unfortunately, remain. 

Although all eyes are on the forthcoming presidential election, the case of Fisher v University of Texas has the potential  to usher in a new reality into America and to change the course of this nation. Let’s hope that the Supreme Court justices make the right decision.

The clock tower of the University of Texas at Austin. Photograph: Getty Images

Lola Adesioye is a British-born commentator, writer and broadcaster of Nigerian heritage. She has been described as “one of Nigeria’s top 10 wordsmiths”, “an emerging face to watch” and “one of 11 sharp black commentators in America”.

Lola’s written work – mostly commentary and features on topical UK, US and African social, political and cultural issues - has been published in a variety of international publications.

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The attack on Les Bleus was an attack on the soul of France - that's why Euro 2016 must go ahead

As a continent reels politically from the refugee crisis and emotionally from the Paris attacks, football must find a new, confident voice.

After the Paris attacks, the great Bill Shankly’s words have rarely been so tested: “Some people believe football is a matter of life and death. I am very disappointed with that attitude. I can assure you, it is much, much more important than that.”

As bombers detonated their suicide belts outside the Stade de France, French and German football fans cheered what they thought were fireworks. They were unaware that it was the opening salvo in a night of barbarity. One of the bombers had a ticket for the game but, mercifully, was turned back at the turnstile. Had his bomb gone off inside the stadium, the immediate loss of life, plus the panicked stampede and two more suicide bombers lying in wait outside for escaping fans, could have produced a death toll higher than at Hillsborough, Bradford, Heysel or either of the Ibrox ­stadium disasters.

The French intelligence services have yet to conclude publicly whether the attacks were timed to coincide with the prestigious friendly or whether the crowd of 80,000 was simply another target of bloodthirsty convenience on an already preordained date. Either way, there’s no mistaking that an attack on Les Bleus was an attack on the soul of France. In the aftermath, the Germany-Netherlands friendly game was called off and Belgian football went into lockdown.

How should British football respond? To those who think that the sport is just 22 players kicking a ball around a field, this may seem a peculiar question. But ever since the tail end of the 19th century, when football escaped from its self-enforced ghettoisation in Britain’s public schools, it has had a greater purpose.

More than any other sport, football has been intertwined with politics. As Harold Wilson said: “It’s a way of life . . . a religion.” When President Rowhani of Iran wanted to bolster his image as a new kind of leader, he didn’t deliver a speech but tweeted a picture of himself wearing an Iranian football top, watching a match. Franco’s dictatorship clung to the all-conquering Real Madrid and punished FC Barcelona. On Robben Island, ANC prisoners idolised Billy Bremner of Leeds United and successfully demanded the right to play football.

In October, one of the biggest protests against the closure of the north-east’s steelworks was from 10,000 Middlesbrough fans at Old Trafford. When Catalans challenged hikes in transport costs, they boycotted public transport from the Camp Nou. The biggest “Refugees Welcome” signs in Europe weren’t produced by governments but by fans of the Bundesliga champions, ­Bayern Munich.

So while the singing of the Marseillaise at the England-France match at Wembley was a “hairs on the back of the neck” moment, most of us understand that it’s not enough. What is less well known is that this wasn’t the first time that one of the world’s few genuinely inspiring anthems has been performed in earnest in British football. A century ago, bands took to the pitch to play patriotic British, French and Russian music – not out of altruism but military necessity. The British army was under intense pressure at Ypres and urgently needed new volunteers. The War Office turned to football.

For many, the journey to Loos, Flanders and the Somme started with a routine visit to cheer on their local team. Their sport transported them from a home football field to their foreign killing fields. Many clubs, including Everton, held military training on their pitches, while Manchester City’s then stadium, Hyde Road, became a 300-horse stable. Hundreds of players died serving in the Football Battalion.

But for too long our national sport reflected Britain’s lack of ease with diversity. From the 1920s, the religious sectarianism that poisoned the west of Scotland was allowed to fester in Glasgow’s football. The sport’s tolerance of recreational racism became widespread. Outside stadiums, right-wing extremists sold their propaganda while, inside, black players were vilified – even by their own supporters. Football’s racism corroded its heart and was rationalised in its head: it was allowed on the pitch, cele­brated on the terraces and accepted in the boardroom and far too many changing rooms.

And now, as a continent reels politically from the refugee crisis and emotionally from the Paris attacks, football must find a new, confident voice. The sport and its fans cannot sit on the subs’ bench at a time like this.

In a nation where only one in five male workers joins a trade union, football is a rare regular collective experience. It is more authentic than click-and-connect social media communities. Despite high ticket prices, football offers the one place where thousands of working-class men, including many politically disenchanted young men, come together in a common cause.

British football has long since jettisoned its ambivalence regarding racism. But for organised extreme right-wingers, Islamophobia fills the space vacated by the anti-Irish “No Surrender” tendency on the sport’s fringes. Although the number of top-flight British Muslim players is infinitesimally small, the streets of Bradford, Blackburn and Birmingham teem with young British Muslims kicking a football. More clubs can harness their power to inspire and increase their ­involvement in community counter-­radicalisation strategies. Clubs should also take the lead by having zero tolerance for Islamophobia, training stewards and backing fans who stand up to fellow supporters.

And, finally, the European Championships, for which all the home nations bar Scotland have qualified, must go ahead in France next summer. There’s no liberté in cancelling. In the name of fraternité, let’s all back France as our second team. Allez les Bleus!

Jim Murphy is the former Labour MP for East Renfrewshire and leader of Scottish Labour 2014-15.

This article first appeared in the 26 November 2015 issue of the New Statesman, Terror vs the State