Fisher v. The University of Texas at Austin, a case that brings the issue of race in the admissions process back before the Supreme Court for the first time since 2003, was argued Wednesday morning, Oct. 10. (See the University's news release about the arguments.)
The plaintiff in the case (Abigail Fisher) claims she was denied undergraduate admission to the university in 2008 because she is white, while the university argues that its admissions system, which considers an applicant's race along with many other factors in an individualized, holistic review, is a constitutional practice that promotes the educational benefits of diversity at the university.
Nearly a decade ago five justices voted to uphold a policy at the University of Michigan that allows an applicant's race to be one of many factors considered in an admission decision. That case was cited by the university in its brief to the court, filed in early August.
"The educational benefits of diversity are worth fighting for all the way to the Supreme Court. Our lawyers effectively made the case to the justices that diversity ethnic and otherwise benefits all students on campus. We made the case that UT has crafted an admissions policy that meets the strict guidelines established by the court in the Grutter decision nine years ago," President Bill Powers said Wednesday after oral arguments were completed.
"The last time the U.S. Supreme Court heard a case involving The University of Texas' use of race in admissions was 60 years ago. The issue then was about excluding African Americans and we were on the wrong side of history. The University of Texas lost that case, but the nation won and has benefited ever since as we have grown more inclusive," Powers said. "Our current admissions process is part of the legacy of that court's decisions, which sought to eradicate segregation. Our policy adheres to the spirit and letter of the court's rulings on the use of race in admissions."
In the run-up to the oral arguments, several national media outlets previewed the case. Here's a roundup of the coverage, with excerpts from Bloomberg Businessweek, PBS News Hour, the Washington Post and others previewing the session, as well as a sampling of commentary pieces weighing in on both sides of the issue.
At the core of the debate is whether universities can adequately diversify without resorting to racial preferences. Texas admits three-quarters of its freshman class each year on the basis of high school class rank the 'top 10 percent rule.' That system ensures a significant number of minorities because it guarantees slots to students at predominantly Hispanic and black schools.
The university considers race only in admitting the rest of the class. Opponents of preferences say that's unnecessary, given the success of the class-rank method. Texas counters that even with race-based admissions, a high percentage of its classes have few if any black and Hispanic students.
Should the high court side with opponents, the ruling could set up Texas's class-rank system as a model for other universities, forcing many to give up preferences.
The court since 1978 has recognized that promoting diversity on the nation's campuses allows a limited consideration of race that normally the Constitution would not countenance.
It has imposed restrictions no quotas, no racial balancing to match demographics, no automatic boost for an applicant because of minority status. But as recently as 2003, the justices reaffirmed the view that "student body diversity is a compelling state interest that can justify the use of race in university admissions."
But the court has changed dramatically since then, with a conservative majority now highly skeptical of even hostile to racial preferences. The justice most likely to decide the case for the divided court Anthony M. Kennedy has agreed in principle that diversity is important but has never voted to approve an affirmative-action plan.
At the same time, the national appeal of "diversity" the goal of producing a legion of future leaders that matches the nation's changing complexion has become so ingrained that more than 70 amicus briefs have been filed on UT's behalf.
Can affirmative action be justified if a university is achieving diversity without using race? The answer could determine the future of affirmative action in college admissions in much of the nation.
The top 10% law, recently amended to admit the top 8% of graduates, has not only boosted diversity, but it has also brought other benefits. Since the mid-1990s, the graduation rate at UT-Austin has risen steadily. Studies showed the graduates admitted under the law outperformed others with higher SAT scores.
"It's had a profound impact. Before, about 10% of the high schools filled 75% of the freshman class seats here," said law professor Gerald Torres. Two years ago, the campus announced that for the first time, a majority of its freshmen were minorities: Latinos, Asians or blacks.
Many are watching for a significant shift in the court's stance toward affirmative action, given the changes in the court's roster since the Grutter decision was handed down. O'Connor, the author of the Grutter decision, has since been replaced by Justice Samuel Alito. And Justice John Paul Stevens, another of the five justices in the Grutter majority, has since been replaced by Justice Elena Kagan, the former Solicitor General who already recused herself from the court's deliberations over whether to even hear the Fisher case.
History isn't central to the legal issues in the affirmative action debate, but it's an issue at UT-Austin. The football team didn't integrate until 1970, and even as minority enrollment expanded, UT little resembled increasingly diverse Texas, leaving minority students feeling isolated.
"It was very seldom three or more were gathered," said Machree Gibson, who arrived on campus in 1978, earned two degrees and later became the first black female president of the Texas Exes, the university's powerful alumni group. "We used to joke, 'Three in a room, we're a gang."'
Today, even a short drive through campus leaves Gibson amazed how things have changed.
But UT still doesn't look like Texas. Of its 52,000 students, 5 percent are black (compared to 12 percent of the state population). Hispanics are 18 percent at UT (38 percent statewide) and Asians 15 percent (4 percent statewide).
Race-blind admissions policies would harm students from all racial and ethnic groups, a group of scholars who support affirmative action argued Thursday, less than two weeks before the Supreme Court is set to hear a case that could change the landscape of admissions dramatically.
"Race-neutral policies simply do not work at the same level affirmative action does," said Stella Flores, an assistant professor in Vanderbilt University's Department of Leadership, Policy and Organizations.
Flores spoke as part of a briefing by the American Educational Research Association, held to discuss the science behind its amicus brief urging the Supreme Court to uphold affirmative action in college admissions in the Fisher v. University of Texas case.
Since the founding of the country, the Supreme Court, Congress, and the executive branch have vested individual colleges with the power to make decisions about higher-education practices and principles, including the ability to decide whom to admit.
Out of this freedom has evolved an American system of higher education that is unique. While many other countries control their colleges from a central ministry, the U.S. system of higher education has always been decentralized, with key academic and administrative judgments left to individual institutions.
The result is a richly diverse system of public and private, two-year and four-year, small liberal-arts and large research colleges and universities with a wide array of curricula and missions. It is a system that remains the envy of the world, attracting hundreds of thousands of international students to the United States every year.
Two years after graduating from the University of Texas at Austin, I recognize that my interactions with students from all walks of life while I was an undergraduate have put me in the best position possible to thrive as a citizen of Texas. And I think about these experiences as the Supreme Court prepares to review UT's use of race in admissions.
Just as my background as a first-generation college student and Fort Worth native born to Albanian immigrants influenced my views, so too did my classmates' hometowns, racial and ethnic backgrounds, socioeconomic classes, and family lives. Our differences facilitated thoughtful exchanges that would help us become contributing citizens of Texas and the world after graduation.
Through my service as a university-wide representative in student government and through an election campaign to represent all UT students I found myself reaching out to the farthest corners of campus. I worked with student groups representing various academic, professional, ethnic and social interests within the student body.
Through these experiences, I recognized the far-reaching benefit of UT's diversity, which affects students in an intellectual capacity inside the classroom and in the real world. Now as a UT law student, I appreciate the practical value of diversity within the college setting and the benefits it will bring me when I practice law in Texas after law school.
The racial and socioeconomic gap in academic performance is America's most pressing domestic issue. When they enter kindergarten, black children are about one year behind white children. When they graduate from high school, black teenagers are four years behind white teenagers.
If affirmative action is abolished, selective colleges and universities will face a stark choice. They can try to manufacture diversity by giving more weight in admissions to those factors that are sometimes close substitutes for race for example, having overcome disadvantage in a poor urban neighborhood. Or they can take a far bolder step: putting their endowments and influence behind a comprehensive effort to close the learning gap that starts at birth. Higher education has a responsibility for all of education. The job of those atop the academic pyramid is not over once they've enrolled a diverse freshman class.
Why did we, friendly rivals as deans of great and sometimes competitive law schools, join forces to write a common brief to the U.S. Supreme Court?
Because we both believe that higher education should select the best possible students, because we both believe we can identify such students only if we are free to evaluate the individual experiences and qualifications of each applicant, and because we both believe that this requires us to understand applicants' own characterizations of their race or ethnicity.
Our reasoning is simple. We admit students to accomplish two goals: to get the best possible students and to assemble the best possible class. These goals require us to examine each applicant in detail.
The Supreme Court has acknowledged that "universities, and in particular, law schools, represent the training ground for a large number of our Nation's leaders." The character of our students is relevant to the quality of our leaders. Character is most often revealed in the life circumstances of our applicants. We look to see how candidates have responded to the challenges they have faced.
As a practical matter, we do not understand how a rule forbidding all consideration of race could possibly be enforced. In their personal statements, many applicants discuss how race has influenced their lives. Writers of recommendations frequently mention race in explaining how an applicant has overcome challenges. Would those advocating race-blind admissions have us censor the statements of applicants and their recommenders? How could we carry out such a task, even if we were inclined to do so?