Abigail Fisher, a white Texas female who sued the University of Texas after the school denied her admission is not just having her day in court; she’s having her day in the Supreme Court of the United States. The court prepared to hear oral arguments Wednesday on whether race can be considered for some college admissions programs.
Racial preferences in college admissions usually are viewed as a boon to minorities at the expense of whites. But when the court takes up Fisher v. University of Texas one of the arguments it may hear is that for some minority students, affirmative action is quite negative.
The case is the latest in a long line of affirmative action cases going back to 1950, when the Supreme Court backed Heman Sweatt’s effort to be enrolled in Texas’ flagship Austin campus. Four years later came the landmark case of Brown v. Board of Education outlawing public school segregation.
Those eager to watch as the justices consider the case arrived as early as 5:30 p.m. Tuesday and camped out on the sidewalk outside the court.
A group of third-year students from American University’s Washington College of Law arrived at 7:30 p.m. to witness history. They were supporters of affirmative action who wondered why the high court even took Abigail Fisher’s case in the first place.
“Being in law school in D.C., we wanted to make sure we took the opportunity to be here,” said Preston Smith, 24, of Durham, N.C.
Demonstrators on both sides of the issue crowded the sidewalk outside the court early Wednesday morning, preparing for rallies scheduled to take place during and after the oral arguments.
Lawyers for Fisher, a 22-year-old Texan who claims she was denied admission in 2008 because she was white, argue that the university’s two-tiered system of racial preferences goes too far. University lawyers say they only use race as one factor in deciding who gets in, far from the type of quota systems previously ruled unconstitutional.
The school uses a “Top 10 Percent” plan, through which students in the top 10% of their high school graduating classes are automatically admitted to the state university of their choice. That has helped schools boost racial diversity, primarily because most of the state’s public high schools are segregated by race and ethnicity.
But because that does not create a “critical mass” of racial groups, the school also considers race in filling out the rest of each year’s class.
The last time the court ruled on affirmative action was in 2003, when it upheld the University of Michigan Law School’s limited use of racial preferences but overruled a numerical system used by the undergraduate school.
Conservatives who have backed Fisher’s case are hoping the court won’t just throw out Texas’ system but overrule the 2003 Grutter v. Bollinger decision – in essence, eliminating racial preferences in college admissions. That would force both public and private schools to change the way they give preferences to blacks and other minorities whom they consider underrepresented on their campuses.
Proponents of affirmative action – including many University of Texas students who traveled to Washington for a protest outside the court on Wednesday – hope the school’s program will be upheld. The court could strike it down in a more narrow fashion that does not affect other schools.
The court has taken a turn to the right since its last ruling upholding affirmative action in 2003. Now, five justices are on record opposing the practice, with Justice Anthony Kennedy considered the crucial fifth vote.
Justice Elena Kagan has recused herself from the case, presumably because she was involved with it while serving as solicitor general in 2009-10.
The court’s rightward turn could mean defeat for the university and, possibly, a sweeping declaration that racial preferences at public colleges and universities are unconstitutional. Such a landmark decision, while considered unlikely, would have even broader impact, casting aside affirmative action programs at private schools such as Harvard and Yale as well because they receive federal funds.
The vast majority of higher education groups defend their policies. In brief after brief submitted to the Supreme Court, organizations representing nearly all facets of higher learning – including public research universities, Ivy League schools, undergraduate and law students, even college basketball coaches – argue that colleges and universities must be allowed to consider race and ethnicity in admissions to achieve the educational benefits of a diverse student body.
Some say nothing less than the nation’s future is at stake.
If the Texas plan is declared unconstitutional, Marie Bigham, director of college counseling at the highly diverse Greenhill School in the Dallas suburb of Addison, predicts a chilling effect.
“My students of color, I worry they’re going to say that ‘these places don’t value what I bring,'” she said. White students, too, will look elsewhere, she said.
“When my students are shopping for colleges, (diversity) is an important data point for them,” Bigham said. “We’re going to lose out on a lot of great kids.”
But that’s just why opponents argue against racial preferences — to protect the rights of Fisher and others who they say are victims of discrimination when universities ignore their superior qualifications.
“Nowhere in the Constitution or the Declaration of Independence does the word ‘diversity’ appear,” a group of Texas faculty members argue in a brief supporting Fisher. “There is no constitutional basis for the courts, let alone a state university, to engage in such a radical restructuring of America, allocating education, jobs and contracts based on race.”
In all, black and Hispanic students made up more than a quarter of the incoming freshmen class. White students constituted less than half the entering class when students with Asian backgrounds and other minorities were added in.
“For decades, the defense of racial preferences was, ‘We’d love to find a way to get diversity without using race, but it’s just not possible. There’s just no other way.’ And Texas found another way,” said Richard Kahlenburg, a senior fellow at the Century Foundation and prominent advocate of class-based affirmative action.
A decision on the case is expected in the spring.