The latest Supreme Court case is a danger to affirmative action – a tool of corrective justice for the non-privileged.

Khaled A Beydoun is a law professor, and author of American Islamophobia: Understanding the Roots and Rise of Fear.

Attending the University of Texas was more than just a dream for Abigail Fisher, 22, but an entitlement. She was a legacy applicant, hoping to follow in the footsteps of her father and sister. Hailing from a middle-class community and Longhorn family, Fisher expected the big, fat envelope that claimed her seat to UT.

That letter was never mailed. Rather, like thousands of marginal candidates each year, Fisher was rejected from UT.

Four years after receiving that rejection letter, and nine years after it was last tested and diminished in Grutter v Bolinger, affirmative action once again finds itself as a defendant in the US Supreme Court. It stands diametrically opposed to an entitled, white female plaintiff – first Jennifer Gratz and Barbara Grutter, and this past October 10, Abigail Fisher.

AA’s principal beneficiaries

The Supreme Court heard the Fisher v University of Texas case last Wednesday. Affirmative action, and primarily the use of race and ethnicity (as one of many considerations) in college admissions, went before judicial scrutiny for the fourth time in its four-decade-and-a-half existence.

Like Gratz and Grutter, the two plaintiffs in the landmark 2003 University of Michigan cases (of the same name), Fisher was a middle-class, white woman. Like her predecessors, Fisher’s candidacy to UT was marginal. She graduated 82/674 in her class, earned a 3.59 GPA, and scored well below the UT’s mean SAT range. Fisher’s performance left her outside of the top 10 per cent of her class and a guaranteed seat at one of Texas’s top public campuses, an admissions system implemented after the 1996 Hopwood v State of Texas case.

Grades, not race, foiled her admission to UT.

US universities to consider positive discrimination

This conclusion is bolstered by statistical evidence that white women, like Fisher, are far and away affirmative action’s primary beneficiaries. Access to superior preparatory education, familial resources, and racial privilege positioned white women at a most opportune intersection after affirmative action’s inception in the 60s. The programme opened both educational and professional doors, long closed by patriarchy and sexism.

Today, white women boast the lowest rate of unemployment in the US – at 6.7 per cent – even besting their male counterparts. More than any other demographic, white women have reaped the benefits of affirmative action’s rehabilitative mission. However, the progeny of its principal beneficiaries have continually challenged its legality in court, particularly its twin mission to alleviate both historical and present-day racial inequity.

These inequalities, highlighted in Bok and Bowen’s watershed Shape of the River study, are more savage today than the era when affirmative action was birthed. However, the Supreme Court upheld affirmative action as a means toward diversifying colleges and universities in Grutter, but turned away arguments affirming its commitment to undoing racial segregation within public education.

The decline of public education: A Detroit vignette

After flunking my freshman year in high school with a D average, I made the 3-mile trek from my home in Detroit’s Warrendale community to Cody High School for summer school. Cody High resembled its sister schools in the Detroit Public School System (DPS) – overwhelmingly black, a dilapidated building, ill-prepared students sharing tattered schoolbooks, and school teachers who behaved more like custodians rather than educators.

Cody High, I discovered, was worlds away from the affluent suburban schools that groomed its students for the University of Michigan, UT, or the Ivy League. Detroit’s youth, much like students from minority populated, indigent and working class corners of America’s urban centres were not being educated but abandoned.

American public education is structurally unequal. Funding is generated through a district’s property taxes, which feeds affluent communities and their students with a considerable comparative advantage. Therefore, the funds dedicated to educate a student in Troy – one of Detroit’s primarily white, affluent suburbs – are nearly twofold the amount earmarked to a student within the City of Detroit.

This means better teachers, a broader range of Advanced Placement and College Preparatory courses, more extracurricular activities, up-to-date books and computers, superior facilities, and in sum, a preferred and paved path toward college.

“Michigan’s government has approved a plan to close 70 of the city’s 142 public schools by 2014. As a result, classrooms will be congested with twofold or threefold the amount of students.”

Since my summers at Cody High in 1993 and 1994, the DPS has continued to plummet while its counterparts in the northern suburbs have steadily improved. Public education in Detroit has reached a near-fatal nadir, representing the most extreme condition of the American public education crisis. This decline intersects with the abolition of affirmative action in Michigan in 2006, which desegregated its public universities – and particularly the flagship University of Michigan and Michigan State campuses.

Michigan’s government has approved a plan to close 70 of the city’s 142 public schools by 2014. As a result, classrooms will be congested with twofold or threefold the amount of students; already overworked teachers will carry a far greater burden, and students living in a city with deplorable public transportation will be forced to commute hours to attend school far from home. Or, in light of the obstacle course laid forth by this crisis, end their education prematurely.

What does this mean for DPS Students? Transitioning onto college, much less a top school like the University of Michigan is a veritable impossibility. Particularly without affirmative action – the lone mechanism that recognises and seeks to ameliorate the structural inequalities that defines public education in America.

During its brief and embattled history, affirmative action became far more than simply an institutional intervention to correct these structural inequities. But also a perfect metaphor for the obstacles and onslaught meted out by inequitable public education in America.

Fisher seeks to accomplish what the Gratz and Grutter cases could not – forever dam the river of opportunity that flows from race-conscious college admissions. Yet, the case is part of a broader movement to eliminate affirmative action, which until recently was strategised through state referenda.

Resegregation by referendum

States including Michigan and California, where affirmative action has been removed by referendum, foreshadow a bleak future for students in America’s poor, urban centres.

The Fisher ruling will not overturn state referendums that eliminated affirmative action. Three years after Grutter and Gratz declared that “race could only be considered as a means toward achieving campus diversity”, Ward Connerly and Jennifer Gratz spearheaded an initiative that capitalised on the segregated landscape and revitalised racism brought about by Michigan’s economic downturn. The misleadingly titled “Michigan Civil Rights Initiative”, a copycat of the California prototype that doomed the state affirmative action programmes in 1996, handed a similar deathblow to race conscious education and employment admissions in Michigan in 2006.

The referenda obliterated campus diversity at the landmark campuses, but also dammed programmatic inroads into college and university for students from underrepresented communities and racial groups. In 2012, only 3.8 per cent and 21.1 per cent of the 9,263 students admitted to UCLA were African and Latino American, respectively, at a public university in a city that is nearly 50 per cent Latino.

Similarly, only 5.7 per cent of last year’s University of Michigan freshman class was African American, forty miles away from one of the country’s most concentrated black cities.

The abolition of affirmative action in California and Michigan, by way of referenda, foreshadows what Fisher may bring about on a national scale. While the judicial debate within the Supreme Court’s walls centre exclusively on the constitutional merits of race used as a tool to exact campus diversity, the harsh educational realities that exist outside of them scream for the need to rehabilitate racial inequities within public education.

The public education plunge has disparately victimised students of colour, in hyper-segregated cities including Detroit, Los Angeles, Houston and Dallas. Affirmative action should be about corrective justice, not a token diversity that enhances the educational value of majority white campuses.

“Detroit’s students are the victims of the structural injustice plaguing American public education, but also the victims of the entitled.”

The embattled versus the entitled

Fisher recently graduated from Louisiana State University. She also holds a promising job as a financial analyst in Austin, blocks away from the UT, which serves as a constant reminder of a dream indefinitely deferred.

Since Fisher’s rejection from UT in 2008, 59 Detroit public schools – and their more than 50,000 students – have been permanently abandoned. More staggering than the school closings are educational statistics indicating that only 2 per cent of Detroit high school students are prepared for college-level mathematics, and only 11 per cent for college-level reading. The bulk of these students are black and brown.

In spite of immense obstacles, a critical mass of Detroit’s embattled students boast academic marks equal or better than Fisher. However, the absence of affirmative action in Michigan – and its consideration of race and ethnicity – eliminated inroads to flagship colleges and universities.

Detroit’s students are the victims of the structural injustice plaguing American public education, but also the victims of the entitled. Race, for the likes of Fisher, has “no place in college admissions”, while white privilege, legacy admissions, and affirmative action’s springing of white women function as a triumvirate of advantages guised behind colourblindness.

“Affirmative action entitles race,” Fisher and its opponents contend. But the status quo of public education in America – in places like Detroit – highlight why race still matters in college admissions.

Before its abolition in Michigan, affirmative action created pathways for students while their school systems were in decline. Bok and Bowen’s study, which tracked the entire course of their careers – from high school through their professional careers – underscored affirmative action’s transformative impact on the lives of thousands of Detroiters, including myself, and millions of Americans since its inception.

Yet, the entitled claim of one woman may deny millions of victims – of a ruptured and racially stratified public education system – a life boat down affirmative action’s shrinking river.

Khaled A Beydoun is Adjunct Faculty and the Critical Race Studies Teaching Fellow at the UCLA School of Law. He is a native of Detroit. He is a graduate of the University of Michigan, Ann Arbor and holds a JD from UCLA School of Law.

Follow him on Twitter: @Legyptian