Supreme Court to Hear Case Brought by White Student Who Claims Race Cost Her Admission to UT

PHOTO: Justice Anthony Kennedy

Supporters of affirmative action fear that the Supreme Court could curtail or further restrict the use of race-conscious admissions policies at public universities.

On Wednesday, all eyes will be on Justice Anthony Kennedy, whose vote is considered pivotal in the case brought by a white Texan who has sued the University of Texas at Austin, claiming that she was denied admission to the school in 2008 because of her race. Abigail Fisher, who has since graduated from Louisiana State University, said she was subject to unequal treatment in violation of the 14th Amendment.

"I was taught from the time I was a little girl that any kind of discrimination was wrong, and for an institution of higher learning to act this way makes no sense to me," Fisher said in an interview clip posted on the website of the Project on Fair Representation, a legal defense foundation that's providing her with legal representation.

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On the other side are lawyers for the University of Texas, who argue that, like many other universities, UT seeks to assemble a class that is diverse in innumerable ways -- including race -- and that "race is just one of many characteristics that form the mosaic presented by an applicant's file."

More than 90 friend of the court briefs have been filed in the case, with the Obama administration weighing in favor of the university. Others, who support Fisher, argue that diversity can be achieved through race-neutral programs, and that race-preferential admissions policies can do more harm than good.

"What's at issue is: (1) whether it will remain permissible to consider race in an attempt to ensure that higher level education remains integrated; and (2) whether universities or the court are going to be the ones to determine what academic diversity consists of," said David D. Cole, a professor at Georgetown Law, who believes UT's plan should be upheld.

It was only recently, in 2003, that the Supreme Court narrowly upheld the limited use of race in public university admissions policies in Grutter v. Bollinger. The five-four opinion was written by Justice Sandra Day O'Connor, who said that diversity was a compelling government interest. But O'Connor has since retired from the high court, and has been replaced by Justice Samuel Alito, who is more skeptical of race-conscious admissions preferences.

In 1997, the Texas legislature passed the "Top 10 Percent Law," which mandates that Texas high school seniors in the top 10 percent of their class be automatically admitted to any Texas state university. But after the Grutter decision came down, another policy was added that allows the school to consider race among several other factors for admission. Fisher did not qualify for automatic admission, and was forced to compete with other non-top-10-percent state applicants. She said she was denied admission, even though her academic credentials exceeded those of some of the admitted minority candidates.

The University of Texas, which was racially segregated during the first 70 years of its existence, argues that its current program exemplifies the type of plan the Supreme Court allowed in Grutter v. Bollinger: "Race is only one modest factor among many others weighed; it is considered only in an individualized and contextual way that examines the student in their totality."

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