My family immigrated to the United States when I was still a child. My parents worked hard, but we grew up poor —my dad worked three jobs and still never made more than $11,000 a year.
We lived in two South Florida neighborhoods. One was Overtown, an inner city ghetto that used to be called “Color Town” during the days of Jim Crow. Overtown is over 64 percent African-American today, and the median family income is about $13,000, while high school graduation rates are about 50 percent.
The other neighborhood I grew up in was Hialeah, a suburban barrio where the median household income today is about $31,000. Hialeah High School, where I was a student, has a graduation rate of about 62 percent. It regularly scores a “C” or a “D” on the FCAT, Florida’s annual assessment test.
The chances of my making it out of either neighborhood were barely in my favor.
Had I not been an honors student in high school, had I not received a football scholarship and then a minority scholarship to study journalism, I would have never been able to attend college.
I was an immigrant, a Latino and I was poor. But which of those would you consider more of an obstacle to overcome? Which of those facts —if any— should be considered in college admissions?
Answer those questions through the lens of affirmative action, and it’s pretty clear why many believe the system is flawed.
A poor Latino? That’s an easy call. But what if I were a Latino immigrant whose parents were wealthy doctors or lawyers? Should I still have been granted a minority scholarship? What if I were not a minority, but a white kid who was the son of a single mom struggling to make ends meet? Wouldn’t I be worthy of educational assistance if I had proven myself academically?
The question that I pose through my own story is at the heart of a case now before the Supreme Court. On Wednesday, the Court heard oral arguments in Fisher v. University of Texas, one of the most important civil rights cases to make it to the Supreme Court in years and one that could fundamentally change or perhaps even end affirmative action as we know it.
Abigail Fisher is white. She graduated from a Texas public high school in 2008 and applied to the University of Texas, but was not admitted. Her grades weren’t high enough for her to be admitted under Texas’ “top 10 percent” law that requires the university to admit all in-state high school seniors who are in the top 10 percent of their class. But her grades were higher than those of some minority applicants from her class who were admitted. The only difference between her and these admitted minority students was, according to Fisher, “the color of our skin.”
And so the Court must now address what role, if any, race should have in admissions decisions. The last time the Supreme Court faced this question was 2003, in a case involving the University of Michigan Law School. In a five to four decision, the Court ruled that the University of Michigan’s “narrowly tailored” consideration of race or ethnicity in admissions decisions was permitted because it helped advance the state’s interests in creating a diverse student body.
The make-up of the Court today is different than it was then. Sandra Day O’Connor, who wrote the majority opinion in the University of Michigan case, has retired and was replaced by Justice Samuel Alito, who is opposed to racial preferences. And so the Fisher case may end up being decided by a crucial swing vote -that of Justice Anthony Kennedy. Like Alito, Kennedy doesn’t like racial preferences. But he has in the past stopped short of ruling out race as an admissions consideration entirely.
Kennedy dissented in the 2003 case, writing that he believed race should “not become a predominant factor” in admissions decisions and should be, at most, only “one modest factor among many others to achieve diversity.” He said as much again during oral arguments in a 2008 case regarding school integration: “You’re characterizing each student by reason of the color of his or her skin,” said Kennedy. “And it seems to me that that should only be, if ever allowed, allowed as a last resort.”
Will Kennedy go further this time? The Court is faced with questions that we as a society must also answer: are decisions based in any part on race the best way to achieve diversity? How do we know when we’ve actually achieved diversity? Does race still matter in school admissions?
Formulaic race-based affirmative action is an imperfect solution to a nuanced problem. As the saying goes, “If all you have is a hammer, everything looks like a nail.” If all you see is a lack of racial diversity, then every solution looks like race-based affirmative action.
Affirmative action may still serve a need and have a place in our society, but not on the basis of race. Rather, educational disadvantage may now be more tied to economics than it is to race and ethnicity. It certainly was in my case.
Research conducted by the non-partisan Century Foundation, published in 2010, found that for students of all races and ethnicities, socioeconomic status is much more difficult to overcome than race. According to their study, SAT scores for economically “disadvantaged” students are 399 points lower than the those of economically “advantaged” students, whereas the SAT scores of African-Americans are only 56 points lower than whites.
Some minority students may need a helping hand in America. And by taking economic disadvantages into account, those that need it will continue to receive it. However, the help they get will not be based on where they’re from or how they look or sound, but rather how hard they’ve had to fight to beat the odds —of not going to the good public school in the richer neighborhood, of not being able to afford tutors and SAT prep courses, of not being afforded the opportunities that exist more readily for the middle class and the rich. Getting help becomes a color-blind decision. It’s about socioeconomic affirmative action rather than race-based affirmative action.
And if Justice Kennedy helps to redefine affirmative action so that it better helps those who are disadvantaged rather than simply those who are of a certain race, then all of us who “beat the odds”—whether black, white, Latino or Asian— should stand up and applaud.
We should be proud of how far our society has come in the past 50 years, that we have moved and continue to move —however slowly— toward becoming what Martin Luther King, Jr. dreamed of: a country where his children “…will not be judged by the color of their skin, but by the content of their character.”
But now it’s time for our thinking to change and our policies to evolve as well, to reflect where we are today and for us to move past simple “black and white” distinctions. Yes, we still have a way to go. But affirmative action in its present form will not get us there.
This piece originally appeared on FoxNews.com