In 2008, Abigail Fisher, then a senior in a Texas high school, applied for admission with the University of Texas in Austin, a school that admits automatically the top 10 percent of every high school graduation class.
Fisher fell short of the mark, so she applied for one of the slots reserved for non-qualifying students that demonstrate other qualities attractive to the school.
When Fisher’s application was denied, she sued the school, claiming that its admission policy was unconstitutional. The school, it seems, gives some preference to students of color – including Latinos and African-Americans. Fisher is white.
On Wednesday, the United States Supreme Court heard the Fisher case. Eight justices listened as a parade of attorneys contended in briefs and in oral argument that the UT-Austin policy is designed simply to help promote “diversity.”
Previous Supreme Court decisions – mainly the Bakke case (1978) and Gutter v. Bollinger (2003) – held that while it would be unconstitutional for a school to adopt a strict racial quota system, a school may use race as one of many factors designed to promote a “diverse” class of students.
According to reports, several conservative justices raised serious questions as to whether the UT policy, and others like it, are constitutional. Chief Justice Roberts, for example, seemed concerned that there was no clear definition as to what constitutes a minority student. He questioned, for example, whether a student only partially Latino would qualify as a minority. Justice Alito expressed surprise when he learned that some students of color from economically privileged backgrounds gain an advantage over white students and students of color that are disadvantaged. When the attorney for the school said that even admitting a wealthy students of color served to promote “diversity,” Justice Kennedy chimed in and said, “You are saying what counts is race above all else.”
Certain justices also seemed troubled that the pro-diversity admission policies were enacted even after the previous rule – admitting the top 10 percent of each school automatically – brought minority admission levels way up.
According to reports, three liberal justices – Ginsberg, Sotomayor and Breyer – seemed inclined to punt the case entirely on the grounds that Fisher no longer was in school. (Justice Kagen rescued herself from the case on the grounds that she had worked on the matter while in government.) This is no small point. The Court has a long history of declining to issue rulings in cases where the matter at issue, over time, is “moot” or “stale.”
If the Court rules that university admission policies should be color blind, many advocates of such policies fear that schools across America will find themselves in turmoil trying to revise their policies to eliminate any hint of racial bias.
On the other hand, as one Fisher supporter was heard to say outside the courthouse this morning: “Martin Luther King said it best – he dreamed that one day his children will live in a nation where they will not be judged by the color of their skin, but by the content of their character.”