Abigail Fisher at the Supreme Court

U.S. top court revisits affirmative action in university admissions

Students and legal experts debate the merits of affirmative action as the U.S. Supreme Court prepares to take up the highly charged question of race in university admissions.

WASHINGTON, D.C., UNITED STATES (FILE) (REUTERS) – The U.S. Supreme Court on Wednesday (December 9) will again take up the highly charged question of race in admissions to public universities, hearing arguments for the second time from a white woman who claimed that a University of Texas policy caused her to be rejected in favor of less qualified blacks and Hispanics.

In the three years since the justices last heard the case and sent it back to a lower court for more scrutiny of the university’s rationale for considering an applicant’s race, legal battles over admissions have intensified.

The conservative advocates behind the Texas challenge have separately mounted an even more sweeping lawsuit against the nation’s most iconic private university, Harvard.

In a twist on the Fisher case, the Harvard lawsuit asserted that Asian Americans have been particularly hurt by affirmative action programs in university admissions. A similar case has been filed against the University of North Carolina.

These new Asian-American cases, which both sides believe are destined for the Supreme Court, could ultimately have greater national consequence than the Texas dispute because they take aim at the landmark decision that first upheld campus affirmative action, a policy under which minorities historically subject to discrimination are given certain preferences.

That 1978 ruling in the case Regents of the University of California v Bakke, forbade quotas but allowed race to be used as one admissions factor among many.

Lawyers for Abigail Fisher, the woman who challenged the University of Texas policy, do not question the Bakke decision or a major 2003 ruling in a University of Michigan case that affirmed it. Rather, they make the narrower argument that Texas could have accomplished its diversity goals with a policy that did not look at race.

“The only way we get beyond immediately focusing on people’s race, the color of their skin is, as Justice Scalia said in an opinion a few years ago to quit focusing on their race and the color of their skin. And I think that’s what we’re asking for here,” said John Eastman, a law professor at Chapman University in Orange, California, who submitted a brief on behalf of Asian students opposed to affirmative action.

On the other side, Elizabeth Wydra, chief counsel of the Constitutional Accountability Center, who filed a brief supporting the University of Texas, said race could not be discounted.

“I think there are people who are devoted to this false construct of color blindness, which, in fact, tries to erase the experiences that people have of race in America from their lives,” she said.

“We will like to get to that place of pure color blindness perhaps someday, but we are not there yet.”

The state of Texas enrolls most freshmen at the Austin campus of its flagship public university by guaranteeing places to the top 10 percent of a high school graduating class. A supplemental diversity policy looks beyond grades to a range of attributes including race.

A ruling in the Fisher case might not apply to schools that have other systems that take applicants’ race into consideration.

Last week, students at Columbia University expressed mixed opinions on the issue.

“I think it should be based on the person, their background, their resume, different experiences that they’ve had in life. I don’t think it should be all about the number,” said Lena.

However, Sydne disagreed.

“I think you are treated a different way based on certain factors of your identity and I think you could end up marginalizing people by not taking those into account,” she said, adding that she did not believe affirmative action was “detrimental to other students.”

Wednesday’s arguments will be heard by eight of the nine justices. Liberal justice Elena Kagan, who was U.S. solicitor general in the Obama administration when it backed Texas in lower court litigation, is not participating.