Abigail Fisher, a white student who graduated outside the top 10 percent of her high school class, was denied admission to UT-Austin in 2008. Claiming that students with lower test scores and less extracurricular involvement were admitted to UT-Austin over her because of their race, Fisher sued the university.
Now the justices will consider Fisher's argument that UT-Austin's admissions policy violates the 14th Amendment's Equal Protection Clause and federal civil rights statutes because it considers race when admitting the students who are not automatically admitted in accordance with state law. The court's decision is expected to come early next year.
Responding to Fisher, the university said in its brief that despite serving as the state's flagship university for nearly 130 years, "not all of that history has been noble." For more than 70 years of its existence, UT-Austin was racially segregated. Its first black student, Heman Sweatt, was not admitted until 1950, following another legal battle and landmark Supreme Court ruling, Sweatt v. Painter.
The Supreme Court last addressed the constitutionality of race-based admissions in 2003 through Grutter v. Bollinger, which overruled a previous court decision, Hopwood v. University of Texas School of Law.
In Hopwood, the University of Texas School of Law's consideration of race in admissions was ruled unconstitutional. Justice Sandra Day O'Connor's majority opinion changed this, though, when in Gruttershe embraced Justice Lewis Powell's idea in University of California v. Bakke that "a university admissions program may take account of race as one, non-predominant factor in a system designed to consider each applicant as an individual, provided the program can meet the test of strict scrutiny by the judiciary."
In his opinion in Bakke, Powell argued that the rigid use of racial quotas as used by the University of California violated the Equal Protection Clause. However, he also said that the university had a compelling interest in achieving a diverse student body. O'Connor agreed with Powell in Grutter, leaving the current high court to decide whether this compelling interest still stands in Fisher v. the University of Texas at Austin.
After the Grutter ruling, UT-Austin began using racial preferences in admissions to achieve an "overall goal of having a diverse student body that is meritorious in a variety of educationally relevant ways."
However, Lino Graglia, a UT law professor who has written widely on race discrimination and affirmative action, said he does not believe that achieving a diverse student body is a compelling interest.
"You know, I don't know what the diversity idea is. Is there any reason to think that putting in some less qualified people of a different race is educationally useful?" he said. "Is that the road to interracial respect that some people got in with lesser qualifications? They're surely on the whole going to perform less well. That's not going to remove stereotypes. That's going to enhance them."
Since 2003 though, the Court has changed and now leans more conservative.
Justice Samuel Alito, who in 2006 was appointed to replace O'Connor, has sided with the court's more conservative judges on the issue of government use of racial classification.
Joining Alito will mostly likely be Justices Antonin Scalia and Clarence Thomas, who both dissented in the Grutter decision.
Justice Anthony Kennedy, who dissented in Grutter, is considered the potential swing vote in the Fisher case. In his dissent, he said consideration of race is "one modest factor among many others," which would survive constitutional scrutiny if each applicant receives individual consideration. He warned that race should not become "a predominant factor in the admissions decision making."
Chief Justice John Roberts is also skeptical of government programs that take race into account. In a 2007 decision that declared a school district's use of a racial tiebreaker unconstitutional, he wrote, "Racial balancing is not transformed from 'patently unconstitutional' to a compelling state interest simply by relabeling it 'racial diversity.'"
The court in this case acknowledged that it had previously held that racial diversity can be a compelling government interest in university admissions, but unlike Grutter, the school district's plan involved no individualized consideration of students. The University of Texas at Austin, for its part, has addressed concerns of race being the "predominant factor in admissions decision making" by saying it considers its applicants on a holistic basis.
"This isn't a quota process where you are counting down until you reach a certain number regardless of the qualifications of the students," said Dr. Kedra Ishop, vice provost and director of admissions for the university. "Every student we admit are here because they are deemed admissible by the state, or who undergo a very rigorous admissions process that's very detailed and complicated."
Concurring with Grutter though, are Justices Stephen Breyer and Ruth Bader Ginsburg. Both agreed with O'Connor in 2003, but did not subscribe to her belief that affirmative action measures would be unnecessary in 25 years, leaving it to be assumed that they will side with UT over Fisher. Justice Sonia Sotomayor is also expected to side with the university after saying she was a "product of affirmative action" in the mid-1980s. Justice Elena Kagan has recused herself because of her involvement in the case while she was solicitor general.
Of 92 amicus briefs filed in the case, 73 have sided with UT-Austin -- a fact that university supporters hope might compel Kennedy to side with Breyer, Ginsburg and Sotomayor.
The Hopwood ruling prohibited race-conscious admissions policies, and UT-Austin's automatic admissions policy came about as a result. By automatically admitting highly ranked students from any public high school in the state -- many of which have large proportions of minority students -- the university could at least have one way to diversify its ethnic makeup.
Freshman applicants get automatic admission to Texas colleges and universities, as long as their GPAs rank in the top 10 percent of their high school's class. The remaining number of freshmen admitted to UT-Austin are accepted based on individual reviews that include a range of factors like academic ranking, leadership, extracurricular activities, socioeconomic status and diversity factors such as race.
As of spring 2009, Texas admits enough students considering class rank as the sole criterion to fill 75 percent of available Texas resident spaces, effectively reducing automatic admission to the top eight percent of students' class.
If the Supreme Court strikes down affirmative action in admissions, a provision in the Texas law states that the 75 percent cap can no longer be applied. UT-Austin would have to revert back to admitting as many students in the top 10 percent as possible, which would mean the entire incoming class.
"Those are great students, we've supported the fact that top 10 percenters are fantastic students on our campus, but to close the door to 90 percent is a consequence that we'll have to grasp," Ishop said.
Jessica Huff is a senior reporter with The Horn, which is partnering with The Texas Tribune to cover the Fisher v. University of Texas at Austin case this week at the U.S. Supreme Court.
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