WASHINGTON — (CNN) In possibly the most consequential case concerning race the Supreme Court will consider this year, justices will hear oral arguments on Wednesday targeting a program at the University of Texas that takes race into consideration as one factor for admissions.
Supporters of affirmative action in higher education are fearful that the court might issue a broad ruling in the case that will curtail a public university’s ability to consider race in order to produce a more diverse student body.
The case comes at a time when students across the country are showing signs of racial unrest. Protests at the University of Missouri broke out earlier this fall over racial concerns that eventually drew the resignation of the school’s chancellor and university system president. At other universities there have been sit-ins and demonstrations.
Eight states currently have banned the use of race in admissions policy all together according to the National Conference of State Legislatures: Arizona, California, Florida, Michigan, New Hampshire, Nebraska, Oklahoma and Washington.
Abigail Fisher, a white woman from Texas, will make her second trip to the Court on the issue. In 2012, the justices heard arguments and then said nothing for eight months. Ultimately, they issued a narrow opinion sending the case back down to a lower court for another look. The short opinion was indicative that the justices are deeply divided on the issue.
The lower court once again ruled in favor of UT and now eight justices (Justice Elena Kagan has recused herself because she dealt with the case in her previous job as solicitor general) will hear the case one more time and are expected to issue a more substantive opinion.
Many eyes will be on Justice Anthony Kennedy, whose vote could be crucial. Although in the past he has supported a diverse student population as a goal and given deference to the interest of avoiding racial isolation, he has yet to vote in favor of an affirmative action plan.
Justice Sonia Sotomayor has been one of the strongest supporters of affirmative action. In 2013, she wrote a highly personal book, “My Beloved World,” that detailed the impact of affirmative action on her life.
Of her time as a student at Princeton University, Sotomayor wrote:
“The Daily Princetonian routinely published letters to the editor lamenting the presence on campus of ‘affirmative action students,’ each one of whom had presumably displaced a far more deserving affluent white male and could rightly be expected to crash into the gutter built of her own unrealistic aspirations. There were vultures circling, ready to dive when we stumbled. The pressure to succeed was relentless, even if self-imposed out of fear and insecurity.”
It was back in 2008 that Fisher was denied admission and she sued claiming discrimination based on race. In Texas, high school seniors who graduate at the top 10% of their class are automatically admitted to the public university of their choice. On top of that program, UT also considers race and other factors for admission.
Since Fisher did not qualify for the program, she applied with other applicants — some of whom were entitled to racial preferences. She was denied admission.
Lawyers for Fisher say in court papers that since UT already had a race-neutral plan in place they shouldn’t have layered on another program that takes race into consideration.
“UT failed to show that its pre-existing race-neutral admissions program could not achieve the desired level of diversity,” they argued. “By holding that UT discriminated against Ms. Fisher and reversing the judgment below, the Court will not only vindicate her equal-protection rights, it will remind universities that the use of race in admissions must be a last resort — not the rule.”
Fisher’s case is being supported by the Project on Fair Representation, a conservative group also behind a case in 2013 that invalidated a key provision of the Voting Rights Act. The group also backed a case heard at the court Tuesday challenging how states draw their legislative lines.
Fisher isn’t asking the Court to forbid race-conscious programs all together, but if the Court rules in her favor, it could make it so difficult for schools going forward that they may abandon attempts to consider race as one of many factors.
Lawyers for the University say that the Top Ten Percent Program alone isn’t enough because it is based on “just a single criteria” and it excludes consideration of “the broad array of factors that contribute to a genuinely diverse student body.”
They say the current program looks at each applicant as a whole person, “thus offsetting the one-dimensional aspect of the Top Ten Percent Law,” and considers the applicant’s race only as one factor among many to examine the student.
They point out that in the past, attempts to use race-neutral efforts to achieve diversity including scholarships aimed at recruiting qualified students of all races from lower socioeconomic backgrounds have failed. “Nevertheless, UT experienced an immediate, and glaring, decline in enrollment among underrepresented minorities,” the UT lawyers wrote.
According to the University, back in 1998, before it could take race into consideration as a factor for admissions, UT had 199 African American enrollees in a class of 6,744 (3% of the incoming class). By 2008, under the race-conscious policy at issue, that number nearly doubled. For Hispanics, the numbers grew to 20% in 2008.
UT also says there is a major procedural issue that should block the justices from even reaching the merits of the case. They say that because Fisher graduated from LSU in 2008, she lacks the necessary injury—or standing—to bring the case before the justices. Although the issue of standing did not stop the court from hearing and deciding the case before, it was the first question asked by Justice Ruth Bader Ginsburg during oral arguments three years ago.
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