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Supreme Court to review affirmative action case

GEORGE E. CURRY | 12/11/2015, 1:28 p.m.
Affirmative action is back on the front-burner at the U.S. Supreme Court, with the justices hearing oral arguments Wednesday in ...
Supporters of the University of Texas in its case against Abigail Fisher demonstrate at the Homer Thornberry Judicial Building, Nov. 13, 2013, in Austin. The Fifth Circuit Court of Appeals is rehearing the case of Abigail Fisher, a White woman who in 2008 was not admitted to UT-Austin because she did not graduate in the top 10 percent of her high school class – the criterion for 75 percent of the school's admissions. Jay Janner of Austin American-Statesman (left photo)

WASHINGTON – Affirmative action is back on the front-burner at the U.S. Supreme Court, with the justices hearing oral arguments Wednesday in Fisher v. University of Texas-Austin for the second time in two years.

At issue is whether Texas’ affirmative action admission program – which uses a variety of factors including leadership, extracurricular activities, work experience, socio-economic status and race – is unconstitutional because it unlawfully denied a White woman admission to the state’s flagship university.

Lawyers for Abigail Fisher argue that she was denied admission to the University of Texas because of her race. However, the university has argued at both the appellate and Supreme Court level that Fisher wouldn’t have been accepted even if there were no affirmative action programs.

The case is being closely watched because it could have an impact on public and private employment and higher education in particular. Affirmative action supporters are hoping, at worse, the court will limit its ruling to the “strict scrutiny” issue and not overturn precedents upholding affirmative action.

When Fisher applied for 2008 fall admission to the University of Texas, it filled nearly 90 percent of its openings with automatic admissions for Texas residents who were in the top 10 percent of their high school graduating class. The remaining 10 percent of the seats were filled with individualized consideration of applicants based on demonstrated leadership qualities, awards and honors, work experience, extracurricular activities, socioeconomic status, family status and responsibilities, standardized test scores and race.

Because she did not finish in the top 10 percent of her high school class in Sugarland, Texas, Fisher’s only opportunity to gain admission was through the individualized assessment.

Though no quantifiable score was assigned to any category, including race, Fisher decided to challenge the consideration of race.

In its “Brief of Opposition,” the university stated: “The undisputed evidence demonstrated that Fisher would not have been offered fall admission in 2008 even if she had scored a perfect ‘6’ on her PAI – the portion of the admissions process where race is considered” along other factors.

Fisher enrolled in Louisiana State University in Baton Rouge and returned to Austin after graduation to work as a financial analyst. Even after graduating, she pursued her claim against the university.

Two years ago, the Supreme Court sidestepped ruling on the merits of Fisher’s case, opting to rule more narrowly by a vote of 7-1 to send the case back to the Fifth Circuit with instructions to consider the case in light of the court’s strict scrutiny requirement.

Writing for the court’s 7-1 majority, Justice Anthony Kennedy said, “… Strict scrutiny imposes on the university the ultimate burden of demonstrating before turning to racial classifications, that available, workable race-neutral alternatives do not suffice.”

That means that universities are free to consider race only after seeking solutions that do not involve race.

Justice Ruth Bader Ginsburg wrote in her lone dissent.

“I have said before and reiterate here that only an ostrich could regard the supposedly neutral alternatives as race unconscious.” she said, “The University of Texas at Austin … has steered clear of a quota system like the one struck down in Bakke, which excluded all nonminority candidates from competition for a fixed number of seats … Justice Powell’s majority opinion in Bakke ‘rules out a racial quota or set-aside, in which race is the sole fact of eligibility for certain places in a class.’ And, like so many educational institutions across the Nation, the University has taken care to follow the model approved by the Court in Grutter v. Bollinger.”