< Behind a Big Supreme Court Case


Friday, March 22, 2013

BOB GARFIELD:  Sometime in the next few months the Supreme Court will decide the case of Fisher vs. the University of Texas at Austin. At issue is whether the University of Texas should be able to use race as a factor in undergraduate admission. Abigail Fisher, who is white, claims the university's admissions policy discriminated against her because of her race in not admitting her in 2008. Fisher is a strawberry blonde fresh-faced poster child for reverse discrimination, but ProPublica Reporter Nikole Hannah-Jones says her story and profile or more appealing than her argument.

NIKOLE HANNAH-JONES:  Abigail Fisher would actually have a very difficult time proving that she was discriminated against. There were far more black and Latino students who were not accepted, with worse grades and test scores than Abigail Fisher than  there who were. There were only 5 black and Latino students offered provisional admission with worse grades than Abigail Fisher, and there were 168 who had better.

BOB GARFIELD:  Whether or not she really, genuinely deserves the standing that she's been recorded in this case, she is just a fantastic symbol of the alleged harm of affirmative action.

NIKOLE HANNAH-JONES:  She makes a great plaintiff. You really want to pick a pristine plaintiff who is going to elicit a great deal of sympathy and outrage, and Abigail Fisher is a good plaintiff in that way. She has a very girlish innocent look about her. She has a great story about working very hard and being turned away.

BOB GARFIELD:  This is not the first time that a photogenic publicity-friendly plaintiff has been used to seek the sympathies of the public in a case like this. In fact, your piece says that the political right, in bankrolling this case, has borrowed a page from the civil rights movement itself.

NIKOLE HANNAH-JONES:  You had groups like the NAACP and other civil rights groups wanting to challenge racial segregation and, in order to do that with a very conflicted public, they had to put forth a plaintiff that would be both sympathetic and who would elicit outrage at kind of the injustice of the law. And the landmark Brown vs. Board of Education, Oliver Brown became the first name of that lawsuit. He was a hard-working welder, an assistant pastor in Topeka, Kansas. First they were challenging largely segregation in higher ed, so they were picking people who were applying into doctorate programs or people who were applying to be law students. So these were people that would be very difficult to kind of pick apart. It was easy to have sympathy for people who were in the middle class, who served in the military and were trying to access the American dream.

BOB GARFIELD:  The narrative on Abigail Fisher is that she had her heart set on being a Texas Longhorn from the time [LAUGHS] she was in second grade. Her father and other members of her family had attended Texas. And this was her dream, scotched because of reverse discrimination. But did she file this suit on her own? Was she kind of dug up by interested third parties who were looking for someone to stand for the class of the white aggrieved?

NIKOLE HANNAH-JONES:  She did not think up this suit on her own and there is no reason to believe that absent a conservative activist by the name of Edward Blum that we’d even know who Abigail Fisher is. Edward Blum has spent the last 20 years bringing court cases against any race-conscious programs in various sectors of the government, and he was looking for a case to challenge affirmative action.

BOB GARFIELD:  Do you know how he became aware of Abigail Fisher?

NIKOLE HANNAH-JONES:  After the Supreme Court in 2003 upheld, very narrowly, affirmative action for the means of diversity, the University of Texas, which had been using a top 10 program, which allowed automatic admission for the top 10% of any graduating high school class in the state of Texas, they then reinstated in affirmative action program on top of that. After the University of Texas did that, Edward Blum began shopping around for a plaintiff to challenge that affirmative action program. So he put the word out that he was looking for someone. And Abigail Fisher is actually the daughter of a childhood acquaintance of his.

BOB GARFIELD:  You understand why litigants would want to serve up a palatable dish, right? But this only works if the public and the press buys in. Can you give me an example of the kind of coverage that utterly bought into the notion of Abigail Fisher as the ideal poster child?

NIKOLE HANNAH-JONES:  On the day that the Supreme Court granted cert to the Fisher case, there was a story on the front page of the Houston Chronicle. It started off with, “The University of Texas enrolled 10,335 minority students, and for Abigail Fisher, that was one too many.” It then went on to say that, with this case, Fisher might be getting a little payback. It seemed like the story was already saying that she was justified, that there was a slot that was hers that was taken and that she was now going to be able to get some kind of vengeance for losing her spot. That's what caused me to start digging into the coverage.

A lot of the coverage did address that the University of Texas said that Abigail Fisher wouldn't have gotten in, regardless of her race, that her grades just weren't good enough. What it didn't get is that Abigail Fisher and her counsel do not deny that, and that's important. It's not just a “he say, she said.” They actually don't deny that they have no way of knowing whether or not race cost Abigail Fisher her spot and that there were white students who got in with worse grades than her. And I think that's very important.

BOB GARFIELD:  So what should have the media done here, instead of what we did do?

NIKOLE HANNAH-JONES:  What reporters are expected to do is just write about the big picture. I didn't have to write deadline stories on this ruling. I had a lot of questions coming from the coverage, namely, how does Abigail Fisher know that students with worse grades than her were getting in? And so, what I did was I went to the court documents, and when I read the court documents, I found that the arguments were quite different than what the coverage is. And I think the lesson for all of us is that maybe sometimes we don't question or, or dig deep enough when the plaintiff is sympathetic. And I think that that's something that all of us as journalists need to consider.

BOB GARFIELD:  Nikole, thank you very much.

NIKOLE HANNAH-JONES:  Thank you for having me.

BOB GARFIELD:  Nikole Hannah-Jones is a reporter at ProPublica.


Nikole Hannah-Jones

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