The case of one would-be University of Texas student, Abigail Fisher, has the potential to put an end to affirmative action at public universities. In fact, Fisher’s attorneys have already filed a petition to seek Supreme Court review of her case, which has left Austin’s Federal District Court unsure of how to rule in the case.
Fisher, who is a white student, claims she was denied admission to the University of Texas because of her race. After suing in Federal District Court, Judge Sam Sparks attempted to use a 2003 Supreme Court decision to help him rule on the case. The decision, which allows schools to use racial preferences in higher education, left him baffled regarding how the decision could be applied to Fisher’s case. According to the decision, which followed the Grutter v. Bollinger case in 2003, made it possible for public universities to sort people according to race. As such, Judge Sparks ultimately ruled that the University of Texas had the right to take Fisher’s race into account.
Legal experts who have analyzed Fisher’s case believe the Supreme Court is likely to hear the case and to make a decision on it by June. Given the changes that have taken place to Supreme Court membership since 2003, it is likely that the Supreme Court will cut back on or even eliminate the use of race in admissions decisions. As a result, some are concerned that universities will start admitting more white and Asian students and fewer black and Hispanic students.
When the Grutter v. Bollinger case was heard in 2003, it was decided with just a 5-to-4 vote. Justice Sandra Day O’Connor, who was the author of the majority decision, retired in 2005. She was then replaced by Justice Samuel A. Alito Jr., who has a record of voting with the more conservative justices when it comes to decisions regarding racial classifications. Chief Justice John G. Roberts has also expressed criticism to programs that classify people according to race.
“Racial balancing is not transformed from ‘patently unconstitutional’ to a compelling state interest simply by relabeling it ‘racial diversity,’” Roberts wrote in a 2007 decision that limited the use of race in order to integrate races in public schools.
Justices Antonin Scalia, Clarence Thomas and Alito have agreed with this assertion. While Justice Anthony M. Kennedy has been less categorical, he has never voted to uphold an affirmative action program in the past.
“There thus seem five votes – Roberts, Scalia, Kennedy, Thomas and Alito – to overrule Grutter and hold that affirmative action programs are unconstitutional,” said Erwin Chemerinsky, who is the dean of the law school at the University of California, Irvine, is quoted as saying in a recent New York Times article.
Despite the perceived unconstitutionality of affirmative action, supporters of these policies maintain that they have helped improve the education of all students involved.
“There is no longer any doubt as to the educational benefits of racially diverse students learning together and from each other,” said John A. Payton, who is the president of the NAACP Legal Defense and Educational Fund.
While Payton maintains that studies have shown that diverse campuses are more effective at educating students of all races and backgrounds, others disagree. Peter Wood, who is an anthropologist as well as the author of “Diversity: The Invention of a Concept,” claims that racial diversity is problematic in education.
“The part of diversity that matters to me and a lot of academics is the intellectual diversity of the classroom,” said Wood. “The pursuit of a genuine variety of opinions that are well thought through and well grounded is essential. But that has an off-and-on, hit-or-miss connection with ethnic and racial diversity.”
Through the Grutter decision, admissions officials were granted the ability to admit a “critical mass” of minority students. According to a brief filed in Fisher’s case by the Asian American Legal Foundation, however, Texas took this decision too far by trying “to make the racial composition of its student body mirror the racial composition of the state of Texas.” As a result, Asian students also found themselves discriminated against when applying to Texas colleges and universities. Representatives from the Asian Pacific American Legal Center, on the other hand, have stated that Asian students have benefited from being exposed to a more diverse body of students.
While the Grutter case allowed states to take race into account when making admissions decisions, it did not require race to be a factor. According to Fisher’s case, the murkiness of the system used by Texas colleges and universities regarding their admissions practices is also questionable. While those students who graduate in the top 10 percent of their high school are automatically admitted, Fisher’s lawyers maintain that the remaining spots are largely determined by race. If her case is heard by the Supreme Court, however, this practice may soon be changing dramatically.