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Fisher v University of Texas at Austin
Abigail Fisher was back at the Supreme Court Dec. 9 for the second hearing of her case, which alleges that she was rejected by the University of Texas at Austin because she is white. Credit: File photo: Meredith Kolodner

WASHINGTON, D.C. — Pointed questions, impatient follow-ups and testy retorts rang through the Supreme Court Wednesday as the future of affirmative action in college admissions was debated with intensity.

The Topic: Affirmative action in college admissionsWhy It Matters: Supreme Court is deciding whether race can be considered in admissions to maintain diversity on campus.

At issue was the claim by a white woman that she was rejected from the University of Texas at Austin because race is considered when admitting some students. But virtually none of the discussion revolved around the specifics of her admissions history; at issue was whether it was necessary to use race as a factor in admissions to maintain diversity on the campus, and how to define and measure what level of diversity is sufficient.

It was the second time in two years that the Court had heard the case, Fisher v. University of Texas at Austin, but despite the heightened racial climate in the country and recent campus protests, it wasn’t clear that much had changed in the arguments since 2013.

“We’re just arguing the same case,” said an irritated-sounding Justice Anthony M. Kennedy, who is considered the swing vote in the case.

The judges’ ruling, expected next spring, could alter the future racial makeup of student bodies at public and private colleges throughout the country. Or it could address only Texas’s unusual processes.

And Chief Justice John G. Roberts Jr. seemed to question whether diversity always brings an educational benefit, asking, “What unique perspective does a minority student bring to a physics class?”

”I don’t think it stands to reason that it’s a good thing for the University of Texas to admit as many blacks as possible.”

In past decisions, the Supreme Court has banned the use of quotas but allowed the use of race (among several considerations) to create a “critical mass” of minority students on campus. When the Court first heard Fisher v. University of Texas in October 2012, UT Austin claimed that its policy did exactly that.

But in June 2013, the Court rejected that argument, saying the university hadn’t proved that it was using race narrowly, and asked the U.S. appeals court to examine the policy again. In a 7-1 decision, Justice Kennedy wrote that universities bear “the ultimate burden of demonstrating, before turning to racial classifications, that available workable race-neutral alternatives do not suffice.”

Fisher v University of Texas at Austin
Protesters who want to maintain the use of race in admissions to the University of Texas rallied outside the Supreme Court, which was hearing a case on affirmative action. Credit: Meredith Kolodner

The appeals court took a closer look and once again ruled Texas’ admissions policy constitutional. Fisher then appealed to the Supreme Court again.

Related: Affirmative action on the docket again: Justice Kennedy’s past opinions hint at outcome

The unusual rules of college admissions in Texas may be significant. Under its so-called 10 percent plan, which was implemented in 1997, students who graduate in the top 10 percent of their high school class are guaranteed admission to public colleges in the state. Because many Texas high schools are racially segregated, the policy has created more diversity on campuses, as the top 10 percent at mostly black or Latino schools have been admitted.

What Abigail Fisher challenged in 2008 was not the 10 percent plan – she didn’t qualify for it — but the admissions process that applies to other students, from Texas and elsewhere, known as holistic review.

Holistic review takes into account grades and test scores as well as essays, extra-curricular activities and “special circumstances,” which include income level, high school quality, whether English is spoken at home, whether a student comes from a single-parent family and race.

”What unique perspective does a minority student bring to a physics class?”

Some lines of questioning Wednesday gave insight into what the justices may be thinking this time around.

Justice Kennedy, for example, focused on whether the University would have more evidence to better prove its case, if the Court were to send the case back to an appeals court and order another trial.

Others asked if it was possible to discern whether a student admitted through the holistic review process would still have been admitted if race weren’t used as one of the factors. They also wanted to know if the university could prove that classrooms would become less diverse if race were taken out as a factor altogether.

Currently, 90 percent of common-size classes have one or fewer African-American students, said the university’s lawyer, Gregory Garre.

Several Justices also asked whether the 10 percent plan provided sufficient diversity on its own, which would mean that using race in the holistic review was no longer necessary.

“Diversity languished … in the period where we had race-blind holistic admissions plus the 10 percent plan,” said Garre, citing lower numbers of minority students, especially African-Americans, before race was added into the holistic review in 2003 and more after it was added.

Fisher v University of Texas at Austin
Protesters who want to end the use of race in admissions at the University of Texas believe the policy is discriminatory. Credit: Meredith Kolodner

There was also no clarity on how to measure diversity and or how to assess when race would no longer be required as a factor. In 2003, in its 5-4 decision upholding an affirmative action plan at the University of Michigan’s law school, Grutter v. Bollinger, the Court said race would be required as a factor for 25 more years.

“Will we hit the deadline?” asked Chief Justice Roberts.

Last year, 30 percent of students admitted through the 10 percent plan in Texas were Latino, while 7 percent of those admitted through holistic review were Latino, according to Marisa Bono of the Mexican American Legal Defense and Education Fund. For African-American students, those numbers were 7 percent and 5 percent respectively.

Advocates for emphasizing socioeconomic status over race argue that these numbers actually make the case for moving towards policies like the 10 percent plan in place of traditional affirmative action.

“The big picture is that a conservative U.S. Supreme Court decision on racial preferences will actually lead to a liberal result,” said Richard Kahlenberg, senior fellow at the Century Foundation. “Universities will shift their emphasis from racial preferences to policies that will create much more racial and socioeconomic diversity.”

Related: From the archive: Will the Supreme Court strike down affirmative action in education once and for all?

But there is debate over whether the 10 percent plan actually creates more diversity than traditional affirmative action did. Researchers say that the growth in the number of students of color at UT Austin reflects the changing demographics in Texas.

“Will any holistic review ever survive? Won’t every school have to use a 10 percent plan?”

And there is a gap between UT Austin’s racial composition and that of the state. In 2014, 13 percent of public high school graduates were African-American and 46 percent were Latino, while African-American and Latino students enrolled at UT Austin were 4 percent and 22 percent of the student body, respectively, according to federal data.

Justices Stephen G. Breyer, Sonia Sotomayor and Ruth Bader Ginsburg asked in several different ways whether Fisher’s lawyer believed that it was ever constitutional to use race in college admissions.

“Will any holistic review ever survive?” asked Justice Sotomayor. “Won’t every school have to use a 10 percent plan?”

It is not clear whether the Court, when it rules, will clarify its definition of “critical mass” — whether an African-American percentage of 4 percent in a student body satisfies that definition.

Some opponents of affirmative action believe the policy hurts black students, arguing they won’t succeed at institutions where other students are better prepared academically.

Justice Antonin Scalia made the claim that most black scientists don’t come from schools like UT Austin, but instead “from lesser schools where they do not feel that they’re being pushed ahead in — in classes that are too fast for them.”

He continued, “I don’t think it stands to reason that it’s a good thing for the University of Texas to admit as many blacks as possible.”

There were a few muffled gasps from the audience.

Garre argued that this issue had been settled in previous cases. “Frankly, I don’t think the solution to the problems with student body diversity can be to set up a system in which, not only are minorities going to separate schools, they’re going to inferior schools,” he said.

Justice Elena Kagan has recused herself from the case, since she worked on it earlier, when she was the U.S. Solicitor General. But the conservatives on the Court still need five votes to make a change, since a four-to-four split decision would let the lower court’s ruling stand.

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