AP Photo/J. Scott Applewhite
After being denied admission to University of Texas at Austin, Abigail Fisher sued the prestigious public university, alleging that her application was rejected because of her race. Fisher is white. The Supreme Court ruling will hinge on whether affirmative action should play a role in the college admissions process.
The high court decision, expected as early as Thursday, will not only affect the University of Texas, but it could have a ripple effect at colleges nationwide. "It wouldn't be legally applicable to the entire country, but it would fuel future lawsuits against other universities," says Vinay Harpalani, a Savannah Law School constitutional law professor.
Affirmative action has increased the number of nonwhites and women enrolled at universities and colleges across the country but remains unpopular among conservatives. Edward Blum, the director of the Project on Fair Representation, who encouraged Fisher to sue the University of Texas, is also behind the lawsuits against affirmative action programs at Harvard University and the University of North Carolina.
Fisher's case rests on the argument that the program that hangs in the balance at the University of Texas has so little impact on the school's overall racial diversity that it makes no difference in the classroom. When Fisher applied for admission in 2008, the university accepted about 80 percent of the freshman class through the "top 10 percent plan." Under that plan, any Texas public high school student who graduates within the top 10 percent of his or her class is automatically granted admission to any public university in the state. (In 2009, the Texas Legislature tweaked the rule for the flagship Austin campus). The composition of the remaining 20 percent of the freshman class rests on race and a variety of other factors including grades, test scores, personal achievements, and socioeconomic class.
Fisher's argument rests on the premise that the University of Texas at Austin admits enough nonwhite students through the "top 10 percent plan," so race-conscious admissions are unnecessary. Fisher was not in the top 10 percent of her high school graduating class; her application landed in the 20 percent cohort where race is one of a number of admission factors. Fisher ultimately graduated from Louisiana State University in 2012.
In the fall semester of the 2014-2015 academic year, only 3 percent of students admitted through the "top 10 percent plan" were black. Latinos and Asian students fared better at 30 percent and 22 percent, respectively. White students made up the majority of those admitted at 36 percent.
The number of students of color at the University of Texas has increased due to the segregated nature of Texas's public high schools.
"If you went to a high school that is 95 percent black or 90 percent Latino, you can imagine that the top 10 percent of the graduating class is going to be primarily black or Latino and get automatic admission," says Harpalani, which increases diversity.
"It is possible the court upholds the UT plan." says Harpalani. "But, the more likely possibility is that they'll strike it down on narrow grounds," which would force the University of Texas at Austin to end its affirmative action program.
This is the second time the Supreme Court will hear Fisher v. Texas to decide whether or not the admissions program is unconstitutional. In 2013, the high court chose to send the case back to the Fifth Circuit Court of Appeals, ordering the lower court to apply strict scrutiny-that is, to decide if the university truly needs its race-conscious program to produce a diverse student body.
Justice Anthony Kennedy, who is considered the swing vote in this case, wrote in 2013 that the racial imbalance at the university was indeed a problem so officials must come up with a race-neutral plan that can increase diversity. This is a task that Richard Rothstein of the Economic Policy Institute called "nearly impossible."
The high court heard the latest round of arguments in Fisher v. Texas in December 2015. Associate Justice Elena Kagan's recusal from the case (she was the U.S. solicitor general when the Department of Justice filed its brief in the case.) means that seven justices will rule on the matter since the the vacancy created by the death of Justice Antonin Scalia last year has yet to be filled.
