WASHINGTON, Oct. 9, 2012 -- 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 But O'Connor has since retired from the high court, and has been replaced by Justice Samuel Alito, who is more skeptical of race-conscious admissions preferences.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."
But lawyers for Fisher said that the top 10 percent plan had made UT one of the most diverse public universities in the nation, and that the school did not need to overlay the successful race-neutral program with another one that considered race. Furthermore, they said that the school is working toward an impermissible goal of using race in admissions to mirror the demographics of Texas, which they said amounted to "racial balancing."
While Fisher's lawyers argue that Grutter should be clarified or even overturned, supporters of UT's program take solace in Kennedy's opinion in Grutter. He ruled against the University of Michigan Law School program named in that case but said, "There is no constitutional objection to the goal of considering race as one modest factor among many others to achieve diversity, but an educational institution must ensure, through sufficient procedures, that each applicant receives individual consideration and that race does not become a predominant factor in the admissions decision making."
Despite those words, Kennedy has never -- in his entire career on the bench -- voted in favor of racial preferences.
"That fact makes it hard to predict how Justice Kennedy will address this plan," said Cole. "If any plan would satisfy Justice Kennedy, it would seem that this one would because the university formulated its plan to meet the specific objections that Justice Kennedy had to the Michigan affirmative action plan."
Justice Elena Kagan will not participate in the case, because she dealt with it in her previous position as solicitor general.
Lawyers for Fortune 100 companies filed a friend of the court brief on behalf of the UT, arguing that those who have been educated in a diverse setting are "better equipped to understand a wider variety of consumer needs" and are "likely to generate a more positive work environment by decreasing incidents of discrimination and stereotyping."
Even the National Association of Basketball coaches said in briefs, "Our student athletes, and all of the students who attend our institutions, receive the best education when they are able to interact with others within a university community that is broadly diverse across its entire scope."
Filing on behalf of Abigail Fisher, three members of the U.S. Commission on Civil Rights point to empirical evidence that they said shows that race-preferential admissions policies do more harm than good. "If this research is right," argued lawyers for commission members Gail Heriot, Peter Kirsanow and Todd Gaziano, "We now have fewer minority science and engineering graduates than we would have under race-neutral admissions policies."
There are seven states that have laws banning the use of affirmative action in public universities (Arizona, New Hampshire, Michigan, Nebraska, Washington, California and Florida, according to the National Conference of State Legislatures). The University of California has filed a brief arguing that its inability to consider race has hurt the school's diversity. The university said it has experimented with different strategies to address underreprestend minority student populations, but that these measures have enjoyed only "limited success," and that the school, particularly, in its most highly ranked campuses, has not been able to reverse a decline in minority admissions and enrollment.
A decision in the current case, likely to come down sometime in early 2013, could have implications for private institutions that receive federal funding, as well as hiring decisions in public institutions.