Supreme Court deciding the boundary lines of affirmative action

Last week marked the second time the U.S. Supreme Court heard the case of Abigail Fisher, a white student denied admission to the University of Texas at Austin (UT) in 2008. That same year, the school admitted African-American students who had lower grades than Fisher.

Fisher sued UT, alleging the school violated her right to equal protection under the 14th Amendment because its admissions process considered race.

The top 10 percent of all Texas high school graduates gain automatic admission to UT, but Fisher missed out. She was in the top 12 percent. The school reviews student applications from outside the top tier of freshmen candidates, taking into account factors such as work experience, family responsibilities, leadership, and race.

After the first attempt at the Supreme Court two years ago, the court in a 7-2 decision sent the case back to a lower court for a closer look at the facts. The 5th U.S. Circuit Court of Appeals again said UT’s admissions policy passed constitutional muster, but Fisher’s lawyer said the school was using an “odious classification” without a good reason.

Race classification is usually illegal. But to attain campus diversity, the Supreme Court has granted a narrow exception for higher education. This case is supposed to answer whether UT’s admissions policy is as narrowly tailored as possible. But different opinions—and ideologies—emerged on the bench.

Justice Samuel Alito questioned UT’s defense of the necessity to consider race in the admissions process.

“One of the things I find troubling about your argument is the suggestion that there is something deficient about the African-American students and the Hispanic students who are admitted under the top 10 percent plan,” Alito said.

Justice Stephen Breyer expressed concern the case is part of a larger movement to do away with affirmative action: “People in the universities are worried that we will … kill affirmative action through a death by a thousand cuts.”

The court could find UT’s admissions process constitutional, send it back for more fact finding, narrow the way race can be used, or throw out race as a factor altogether in higher education. Public universities funded by taxpayers and private schools that also accept federal money are bound by Supreme Court decisions on race.

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