Oral arguments before the U.S. Supreme Court began Oct. 10 over a higher education admissions lawsuit that could lead to a high court ruling with a deep and lasting effect on the nation’s colleges regarding affirmative action.
“The stakes are very high,” said Paul Wolfson, partner with the law firm WilmerHale, of the ramifications of a ruling in Fisher v. University of Texas at Austin.
Wolfson represents a consortium of Ivy League and other universities, who filed a brief in support of UT’s undergraduate admissions policy.
The institutions were joined by a broad range of supporters including the Obama administration, members of Congress, more than 55 major corporations, more than 35 high-ranking retired military officials, student organizations, prominent social scientists, colleges and universities, small business representatives, states, religious denominations, labor unions, and civil and human rights organizations, all of whom filed briefs in the case.
“Obviously this is a case with tremendous interest to the civil and human rights community as it is to all Americans,” said Karen Narasaki, former president of the Asian American Justice Center during a press briefing organized by the Leadership Conference on Civil Rights (LCCR). “In line with the Supreme Court precedent, the University of Texas has created a fair process for expanding opportunity, which we fully support.
“Many students of color must overcome additional obstacles to success. And when they do that despite these odds, we believe the university should be able to provide those students with a chance to succeed.”
In Grutter v. Bollinger the Supreme Court upheld that universities and colleges have a “compelling interest” in using race to foster diversity in their student populations due to the educational benefits of such multiplicity, including better preparation for competing in an increasingly global market.
After the University of Texas’ former quota-based diversity plan was nixed by the courts, the school adopted an admissions process guaranteeing entry to all students who graduate at the top of their class.
In admitting those students who do not qualify under the 10 percent rule—and with an eye to diversity—the university used an holistic measuring tool that considered academic achievement and other factors such as, racial/ethnic background, extracurricular activities and the person’s responsibilities at home.
“I don't think that just grades and test scores are the best way to decide who should be admitted to a college or university because there is so much more that makes a person than just that,” said Michelle Lee, a student at University of California San Diego, in support of UT-Austin’s approach. “Colleges and universities should consider a whole person and everything they bring, including the different experiences they have because of their race.”
The plaintiff in this case, Abigail Fisher, filed a lawsuit after she failed to gain admission to UT-Austin in 2008. The White student argued that the consideration of race in the school’s policy violated her constitutional rights.
Her suit, while not overtly attempting to overrule the basic tenet that universities have a compelling interest in creating diversity, suggests that the Top Ten Percent rule yields sufficient variety. It also purports that the university should prove through complex data stats the educational benefits of each person chosen for diversity reasons.
“Many universities are concerned that the Supreme Court will issue a broad ruling either completely repudiating its ruling in Grutter that a diverse student body is a compelling interest or that universities will be held to an excessively rigorous standard of proof demonstrating that race-conscious policies are absolutely necessary,” attorney Wolfson said.
Thomas Saenz, president and general counsel of MALDEF (Mexican American Legal Defense and Educational Fund), said given the realities of persistent discrimination and inequity in Texas and other places, affirmative action policies continue to be necessary.
“Equal educational opportunity remains an elusive goal in Texas as throughout the nation,” he said. “Texas, in particular, has faced and continues to face ongoing inequities in its funding of public schools; because of segregation, these disparities correlate strongly with race.
“This and other educational inequities, while not strictly a part of the constitutional test in this case, are critical context in evaluating a program designed to ensure that all university students receive the benefits of student body diversity."
Marcia Greenberger, founder and co-president of the National Women's Law Center, which also supports the University of Austin, said the same is true for achieving gender diversity and equality.
“Diverse colleges and universities will not happen on their own. If we don’t cultivate diversity, the persistent effects of often unconscious stereotypes and other obstacles to success will result in too many women being shut out from opportunity and will narrow the experience of us all,” she said.