WASHINGTON — LSU graduate Abigail Fisher’s affirmative action case against the University of Texas that could force universities nationwide to dramatically alter their student admissions policies standards was argued Wednesday before the U.S. Supreme Court.
Fisher, a white woman who graduated from LSU in May, filed a lawsuit against the flagship Texas college after she was rejected from the school in 2008. She argued that minority students with worse grades and fewer extracurricular activities were selected over her. She ended up choosing LSU as a result.
Fisher, who recently moved to Austin, Texas, is seeking financial damages using the argument, in part, that her job opportunities would be improved as a University of Texas graduate, rather than as an LSU alumna.
U.S. Supreme Court Associate Justice Sonia Sotomayor summed up the decision that must be made.
“At what point do we stop deferring to the university’s judgment that race is still necessary?” Sotomayor asked. “That’s the bottom line of this case.”
The University of Texas must adhere to state law that requires accepting the top 10 percent of students of each Texas high school. This has created more diversity because many schools are in more segregated communities, the state argued.
Fisher was outside of the top 10 percent of her class in what she argued was a more-challenging high school. But she is suing because the way the university fills out the rest of its in-state students allows race to be one of the factors in a “holistic” and “individualistic” selection process.
The Supreme Court could uphold the university’s policy, narrowly reject it in a way that only addresses schools with race-neutral policies that enhance minority enrollment like the “Top 10 Percent” law, or make the more sweeping decision to totally ban the consideration of race in college admissions.
A final court ruling could take several months.
Attorney Gregory Garre, who represented the university, said Fisher would not have been accepted “no matter what her race.”
The key phrase of Wednesday’s arguments was “critical mass.”
As such, justices were asking at what point is enough diversity achieved and such race-based factors are no longer a consideration. Chief Justice John Roberts questioned, “When will we know that you’ve reached a critical mass?”
“When the educational benefits of diversity are realized,” Garre said.
Having a 3 percent black student population just a few years ago — now closer to 6 percent — is certainly not a “critical mass,” Garre said. When the university conducted a student survey a few years ago, Garre said minority students reported feeling a “shocking” level of “isolation” on campus.
Associate Justice Antonin Scalia said it seems wrong to suggest that the isolation is only being caused by the university’s demographics.
Fisher’s attorney, Bert Rein, said the “Top 10 Percent” law is a “major generator” of racial diversity on its own and that no further measures are needed.
“We don’t believe they’ve shown any necessity for what they’re doing,” Rein said. “Race was the first resort and it should have been the last resort.”
Rein said the university is operating under the policy: “Green light, use race, no end point, no discernible target.”
“Where’s the end point?” Rein questioned. The “unchecked use of race … needs to be corralled,” he said.
The Supreme Court last ruled on affirmative action in college admissions in 2003 in the five-to-four Grutter vs. Bollinger decision concerning the University of Michigan Law School. The court ruled that race could be used as only one factor in admissions in order to achieve a “critical mass” of ethnic diversity.
Associate Justice Ruth Bader Ginsburg called the University of Texas’ policies “more modest” than those cited in the Michigan case. Former Associate Justice Sandra Day O’Connor, who retired in 2006, wrote in the Grutter decision that she expected it to stand for 25 years.
Associate Justice Elena Kagan, who was appointed by President Barack Obama, recused herself from the case. She previously served as solicitor general when the Justice Department intervened in the case in the lower courts on behalf of the University of Texas.
A four-to-four split vote is possible with Kagan out, which would mean that the ruling by the 5th U.S. Circuit Court of Appeals in New Orleans would stand. The 5th Circuit favored the university. Its decision would be law for Louisiana, Texas and Mississippi but would set no binding precedent for other circuits.
As is frequently the case, Associate Justice Anthony Kennedy is widely considered by court watchers as the possible swing vote who could decide the ruling. Kennedy did not speak up much, but he asked Rein, Fisher’s counsel, whether the small enrollment differences gained by the university’s policies caused too much harm.
“Are you saying you shouldn’t be imposing this hurt or injury for so little benefit?” Kennedy asked.
Associate Justice Samuel Alito questioned whether minorities who come from more privileged backgrounds should receive a “leg up” in the admissions process as well.
“We want minorities from different backgrounds,” said Garre, who represents the University of Texas. “What we want … are different experiences.”
An “African-American fencer” was later cited as one such example.
Fisher’s legal and public relations team has repeatedly denied interview requests except to national news organizations.
But in a prepared comments statement made outside after the Supreme Court arguments were heard, Fisher said, “My parents always taught me that it is wrong to discriminate. I hope the Supreme Court will decide that all future University of Texas applicants will compete without their race or ethnicity used in the school’s admissions process.”