By Lydia Wheeler - 12-09-15 06:00 AM EST
The Supreme Court will revisit the use of race in determining college admissions Wednesday in a case that experts say could have important implications for affirmative action policies at public universities around the country.
Opponents of such policies are bullish about the prospects of a win in Fisher v. the University of Texas, particularly with a justice from the court’s liberal wing sitting out the case.
“I think the issue of race as a factor in college admission is on its way out,” said Thomas Fitton, president of Judicial Watch, a conservative foundation that filed a brief in the case.
The case stems from a lawsuit Abigail Fisher filed against the school after she was denied admission in 2008. Fisher, a white woman, argued that UT’s consideration of race in its admissions process violated the Equal Protection Clause under the 14th Amendment, particularly because state law guarantees admission to students who graduate in the top 10 percent of their high school classes.
Fisher argues that the policy is sufficient to help UT achieve diversity, but the school disagrees.
“She has a dim view of success and diversity,” the university said in court documents, arguing that Fisher’s case “ignores the significant blow to diversity in the broad and qualitative sense … that comes from selecting a class based on one factor (class rank), and nothing else.”
Those in support of UT’s policy argue that relying only on rankings promotes segregation.
“These plans may also create perverse incentives that encourage parents to keep their children in low-performing segregated schools and discourage students from taking challenging classes that might lower their grade point averages,” the National Education Association said in a brief supporting UT.
Judicial Watch, whose brief backs Fisher, said the court is likely to crack down on affirmative action and further restrict schools wishing to use race as a factor in enrollment.
“Whatever wiggle room schools have had in making that type of consideration is less likely to be there after the court rules,” Fitton said.
While opponents of affirmative action are hoping the court will toss out the policy altogether, legal experts say the justices could choose to rule more narrowly in a manner that would have fewer ramifications for other universities.
Justice Elena Kagan has recused herself from Wednesday’s arguments, leaving just eight justices to decide a case that’s before the court for the second time in two years.
The 5th Circuit U.S. Court of Appeals has twice upheld the university policy, and if the high court is split 4-4 in its decision, the lower court’s ruling will stand.
Less than two years ago, the Supreme Court upheld a ban on race-based admission programs at state universities that had been approved by Michigan voters.
In the 2014 case known as Schuette v. the Coalition to Defend Affirmative Action, the court upheld the ban in a 6-2 decision that centered on whether states can choose to prohibit the consideration of racial preferences.
In delivering the opinion of the court, Justice Anthony Kennedy said the case was not about resolving the debate over racial preferences in admissions.
“It is about who may resolve it,” he wrote. “There is no authority in the Constitution of the United States or in this court’s precedents for the judiciary to set aside Michigan laws that commit this policy determination to the voters.”
In a fiery dissent joined by Justice Ruth Bader Ginsburg, Justice Sonia Sotomayor said the decision “eviscerates an important strand of our equal protection jurisprudence.”
“For members of historically marginalized groups, which rely on the federal courts to protect their constitutional rights, the decision can hardly bolster hope for a vision of democracy that preserves for all the right to participate meaningfully and equally in self-government,” she wrote.
While the Supreme Court has upheld the use of race in admissions, the justices could always reverse course, acknowledged Dennis Parker, director of the ACLU’s Racial Justice Program, which filed a brief in support of UT.
For instance, Brown v. the Board of Education in 1954 overturned racial segregation that had been constitutionally upheld in Plessy v. Ferguson more than 50 years earlier.
“The court sometimes goes back and changes its opinion,” Parker said. “It’s possible they will do that, but I think it’s very unlikely and very inappropriate.”
He said the court could decide that diversity is an acceptable justification for admission but still rule against UT. The impact of such a ruling would be limited to schools that that rely on class rankings for admission.
However, a broader ruling for Fisher could open the door for other students to challenge race-based admissions policies, said Michael Dorf, a law professor at Cornell University.
Given the court’s past decisions and Kagan’s recusal, he said, “the best the UT could hope for is a tie.”
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