Race and Opportunity at the Core of Supreme Court Case

The Supreme Court is considering a case from Texas that challenges affirmative action in college admission. The case was brought by Abigail Fisher, now 22, who claims she was denied admission to the University of Texas in 2008 because of the color of her skin. Fisher, who is white, says university admissions policies favor some African-American and Hispanic applicants in a way that violates the equal protection clause in the Constitution.

Abigail Fisher stands with her attorney as he speaks to the media after the U.S. Supreme Court heard arguments in her case. Fisher says that she was unfairly rejected from the school because she is white, and wants race to play no part in the university admissions process. The legal battle is the most closely watched case of the court's current term, bringing to the forefront two heavily debated topics-- race and opportunity. “I’m hoping,” Fisher said, “that they’ll completely take race out of the issue in terms of admissions and that everyone will be able to get into any school that they want no matter what race they are but solely based on their merit and if they work hard for it.” The case revolves around the Fourteenth Amendment, which has been at the center of debates about discrimination and equality since it was added to the Constitution at the end of the Civil War. The Amendment reads in part, that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens” or “deny to any person within its jurisdiction the equal protection of the laws.”

University of Texas v. Fisher

The University of Texas’ 2008 freshman class of more than 6,600 included 1,713 African-American and Hispanic students. Of those, 216 were admitted under the admission guidelines being challenged. The university automatically takes Texans who graduate in the top 8 percent of their high school classes (at the time of the case, it automatically accepted the top 10 percent), but the remaining quarter is up to admissions officials who use a variety of factors to pick and choose students. These officials say they take race into consideration to build a student body diverse enough to include minority students with a broad range of backgrounds and for the campus to have a “critical mass” of minority students in most classrooms. Interaction among students in class and around campus, said Kedra Ishop, the university’s director of admissions, helps students overcome biases and make contributions to a diverse society. “The role of U.T. Austin,” Dr. Ishop said, “is to provide leadership to the state.”

Recent affirmative action cases

This case comes nine years after the Supreme Court narrowly upheld affirmative action in a dispute over the University of Michigan Law School's admissions practices, known as Grutter v. Bollinger. By a 5-4 vote the court in 2003 said universities could consider an applicant's race alongside a host of other factors to improve diversity. The majority opinion in that case, written by Justice Sandra Day O’Connor, rejected the use of racial quotas in admissions decisions but said that race could be used as one factor among many, as part of a “holistic review.” Justice O’Connor retired in 2006, and her replacement by Justice Samuel A. Alito Jr. may open the way for a ruling cutting back on such race-conscious admissions policies, or eliminating them. Public universities in 43 states that allow affirmative action and thousands of private colleges and universities have relied on Grutter v. Bollinger to justify considering race in their admissions decisions.

Who decides if consideration of race is still necessary?

One of the justices’ main concerns goes to the heart of the case: at what point does the court stop deferring to a university’s judgment that the consideration of race is still necessary? “I understand my job under our precedents is to determine if your use of race is narrowly tailored to a compelling interest,” Chief Justice John Roberts said to Gregory Garre, a lawyer representing the University of Texas. “The compelling interest you identify is attaining a critical mass of minority students at the University of Texas, but you won’t tell what the critical mass is. How am I supposed to do the job that our precedents say I should do?” Since the University argues that Abigail Fisher would not have been accepted regardless of race based admission practices, the justices could sidestep the issue altogether. Texas argued that Fisher has no right to be in front of the court essentially because it can do nothing for her. She already has graduated from Louisiana State University, and the only money at issue in the case is her $100 application fee. A decision by the Court is expected by late June 2013.