Affirmative Action in Higher Ed Faces Supreme Court Test

The woman at the center of the most high profile affirmative action case to be heard by the Supreme Court in years didn’t set out to shake up admissions policies at colleges across the country. However, when the rejection letter from her dream school — University of Texas at Austin — arrived four years ago, she felt she had been rejected because of her race. And she didn’t think this was fair. She sued, and her lawsuit could potentially do away with any kind of race consideration in college admissions process.

Abigail Fisher looked like a great candidate on paper. She was an excellent student and participated in several extracurricular activities including soccer and playing the cello. Still, UT says that even without race as an issue, her qualification weren’t good enough to warrant admission.

But that assertion doesn’t form the backbone of the university’s case. Instead, it is arguing that the freedom to assemble a student body that mirrors the society and state that the school exists in is vital to its mission.

University officials said that the school’s affirmative action program was needed to build a student body diverse enough to include minority students with a broad range of backgrounds and for the campus to have a “critical mass” of minority students in most classrooms. Interaction among students in class and around campus, said Kedra Ishop, the university’s director of admissions, helps students overcome biases and make contributions to a diverse society. “The role of U.T. Austin,” Dr. Ishop said, “is to provide leadership to the state.”

The makeup of the Supreme Court today points to a possible overturn of Grutter v. Bollinger, the decision that did away with use of race-based hard quotas but allowed the use of race in college admissions decisions. The decisive fifth vote in a 5-4 majority, Sandra Day O’Connor, who also authored the majority opinion, retired from the court in 2006. The judicial history of her replacement on the court – Samuel A. Alito, Jr. – points to a willingness to do away with race-based admissions policies altogether.

The support and opposition to affirmative action falls along predictable lines. Universities generally support the use of race as a factor, saying that providing a racially and ethnically diverse campus prepares students to enter and function in a similarly diverse world outside of school. Opponents of racial preferences feel that the Constitution does not allow organizations to make decisions based on race even when the intent is good.

In an editorial in The Washington Post, deans of several top law schools wrote that they viewed affirmative action as essential building block to a more integrated society as they explained their decision to file an Amicus brief in support of UT.

O’Connor’s opinion allowed the use of race in “a holistic” way, and it’s hard to describe the method used by UT as anything but. Seventy-five percent of slots in the Texas public university system are typically set aside for its lauded Top Ten program that guarantees admission to anyone who ranked in the top ten percent of their graduating class.

 (Almost everyone calls this the Top Ten program, though the percentage cutoff can vary. Ms. Fisher barely missed the cutoff.) The remaining Texas students and those from elsewhere are considered under standards that take account of academic achievement and other factors, including race and ethnicity.