What Another Look At Affirmative Action Will Mean

Affirmative action is back before the U.S. Supreme Court. On Wednesday, the justices hear arguments in Fisher v. University of Texas at Austin. Abigail Fisher says she was denied admission to the school four years ago because she's white. Host Michel Martin discusses the upcoming arguments with Associated Press reporter Justin Pope.

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MICHEL MARTIN, HOST:

This is TELL ME MORE from NPR News. I'm Michel Martin. Later in the program we will take a closer look at K through 12 education in Florida. That's ahead of our trip there for our Twitter Education Forum tomorrow. It's a special broadcast from Miami and we hope that you'll be joining us for that. Our conversation looking ahead is in just a few minutes.

First though today, we are focusing on an issue affecting higher education. Affirmative action in university admissions is back in front of the Supreme Court this week. That's for the first time since 2003. The court hears oral arguments on Wednesday in a case brought by Abigail Fisher. She is a white student who sued the University of Texas at Austin for denying her admission, something Fisher believes the school did because of her race.

Joining us now to talk about the case is Justin Pope. He is the national higher education reporter for the Associated Press and he's been following this case closely. Justin Pope, thanks so much for joining us.

JUSTIN POPE: Thank you for having me.

MARTIN: I'd like to play a short clip now of Abigail Fisher. She's the young woman at the heart of this case, as we said. She did not speak to us directly but her lawyers have interviewed her and they've made these comments from her available to the media. And I'm just going to play a little bit of it. This is where she talks about the circumstances that she says are driving her. Here it is.

(SOUNDBITE OF RECORDING)

ABIGAIL FISHER: There were people in my class with lower grades who weren't in all the activities I was in who were being accepted into UT, and the only other difference between us was the color of our skin.

MARTIN: Could you talk more about that? I mean is that essentially her argument?

POPE: Well, it's certainly what she feels strongly about in this case, and at a sort of meta level it's what this is about, although this case itself will turn on kind of more precise arguments. It's certainly undeniable that the University of Texas has two systems of admissions that exist side by side and one of them does use race as a plus factor.

The university says that it's necessary to do that to get a kind of critical mass of diversity that it thinks it needs. But actually, it's interesting - both sides of this case sort of agree that it's actually not much of a plus factor in terms of the effect it has at the University of Texas. It doesn't bring a ton more of under-represented minorities in. But they disagree over what that means.

To the University of Texas that just shows that they use race in a responsible, limited way, part of an individualized review in line with what the Supreme Court has said is allowable. To Fisher and her attorneys, the fact that it hasn't produced a lot more diversity shows that it isn't necessary to consider race at all, that there are race-neutral ways to achieve a critical mass of diversity that would work just fine.

And Texas has an obligation to try those first before resorting to using any kind of racial preference in its system.

MARTIN: So tell me, how does race work as a plus factor, as you put it, in admissions at the University of Texas at Austin?

POPE: So what's confusing here is that there are two systems of admissions that exist side by side at the University of Texas. It's a unique situation. Most of the incoming class at Texas is, as you say, selected through a race-neutral, at least on paper, method that gives automatic admission to people who finish at the top of their Texas high schools.

It's originally called the Top Ten Percent Plan. Now it's actually a little bit less than that. So race does not explicitly factor into that, although in practice it has increased from what it used to be the diversity at the University of Texas because there are still so many segregated high schools in Texas. It has had that effect.

But for the remainder of the class - it's actually about a quarter of the remaining class - Texas uses a different system which does include race as a plus factor. It emphasizes it. It is a small factor. It is not automatic. It is not a points-based system, but it does have an effect and it does give something of a bonus to under-represented minorities.

And the university says we need to continue to be able to use that in the second system of admissions to get the kind of critical mass of diversity at the classroom level and not just at the student body level that we think we need. And this really matters because at other universities around the country their whole admission system looks a lot more like that second admission system at Texas.

So the irony of this case is that it may not have a huge effect on the student body at Texas, but if the court issues a very broad ruling that really rolls back what colleges can do in terms of using race in admissions, it could have a bigger effect at other colleges and universities around the country that make much more use of race in how they select their students.

MARTIN: If you're just joining us, this is TELL ME MORE from NPR News. I'm Michel Martin and we're talking about the case that will be argued at the Supreme Court this week, Fisher versus the University of Texas at Austin. Our guest is Associated Press reporter Justin Pope who's been covering this case closely.

I just wanted to play another short clip from Abigail Fisher, the young white woman who filed the suit, saying that students with less qualifications than she were admitted into the University of Texas at Austin when she was denied and she believes that race is a factor. I just want to play a short clip.

(SOUNDBITE OF RECORDING)

FISHER: A good start to stopping discrimination would be getting rid of the boxes on applications: male, female, race, whatever. Those don't tell the admissions people what type of student you are or how involved you are. All they do is put you into a box. Get rid of the box.

MARTIN: You know, obviously Miss Fisher believes that this is a matter of discrimination. What does the university say about this, the box that she's talking about here? And how is this being viewed by other colleges and universities?

POPE: Well, the University of Texas would say that she's exactly right. They don't want to view students as just boxes and so they need to have the right to view them as whole people and review their applications as individuals. But the difference is that they think that, for at least part of their class, it's important that they be able to consider race as one of those aspects of their personality and their background and their experiences that they bring to the campus.

I think across higher education there is a fairly universal commitment to the idea that diversity on campus is important. There is very widespread support for the use of race in admissions as an essential way to get there. A lot of universities, education associations, have lined up behind Abigail Fisher, but I think there's also a very strong sense that this is going to be a very tough case to win, that this court, which is more conservative, particularly on this issue, than the court was in 2003, is very likely to roll back the use of race in admissions in some regard. Probably the best they can hope for is that the ruling would be limited to Texas and telling Texas it has to try harder to use race-neutral admissions for the entirety of its admissions system, but not make a broader sweeping statement about what colleges and universities elsewhere can do.

Losing this case would - for them would really be the court telling colleges and universities around the country that they have to curtail sharply their use of race in how they select their students.

MARTIN: What is the legal basis for upholding the use of affirmative action at all? I mean for the opponents of affirmative action, their case is - they think their case is very straightforward. They say that discrimination of any kind on the basis of race is against the law of the land and therefore that if white people are deemed to be discriminated against, then that's equally objectionable under the law. What's the legal case on the other side?

POPE: Well, this case is really about the educational value of diversity in the classroom and what colleges and universities, how far they can go to achieve it. The court has already accepted that a diverse student body is an important educational goal, that you need a critical mass, quote-unquote, of students to achieve the benefits of a diverse student body.

Even the opponents of affirmative action aren't really fighting that fight anymore. The question is, what use of race can colleges and universities make to achieve a diverse student body? How far do they have to go to exhaust possible race-neutral alternatives? How much leeway do they have to define for themselves what critical mass is, and at what point the only way to get it is to use race as a plus factor in admissions?

The dispute is really about that, how much leeway do colleges have to say the only way we can get the critical mass of under-represented minorities we need is to use race in admissions and at what point does a court step in and say you're not just going to get a blank check to do that, you have to meet some standards?

MARTIN: What is the legal basis for arguing the educational value of a diverse student body?

POPE: Well, the court really accepted those arguments in 2003, hook, line, and sinker. It was in the case involving the University of Michigan. It was bombarded with arguments from universities, from psychologists, from researchers, from corporate America, most influentially from the military, that there is educational value in having a diverse exchange of ideas on a college campus. And having a critical mass of underrepresented minorities, enough voices in the class so that the minorities who are there don't feel like they have to be token representatives of their race and so that everyone sees that there's no sort of one-size-fit-all view that underrepresented minorities have.

So the court has accepted that argument. The real question now is how...

MARTIN: But that was a different court, was it not? I mean Justice Sandra Day O'Connor authored the opinion in 2003. She's since retired. She's been replaced by Justice Samuel Alito, who is considered one of the most - if not the most - conservative member of the court - correct? - and has made it very clear that he is a fierce foe of affirmative action - any race considerations in college admissions. Right?

POPE: Yes. That's...

MARTIN: So is the working assumption then that this new court majority will overturn the previous decision? Is that the working assumption?

POPE: I think it's fair to say it's the working assumption that they will try to find some way to limit the use of race in college admissions. That's not the same as saying that they're going to completely overturn the previous decision.

In fact, the court doesn't necessarily have to reject the idea and probably won't reject the idea that it's important to have a diverse student body, that that's a worthy educational goal of colleges. The question is really how far does it have to go to try race neutral alternatives that might get you that diversity without factoring in race and admissions?

MARTIN: Justin Pope is the national higher education reporter for the Associated Press. He's been following this case that is before the Supreme Court this week. He's been following it closely and he was kind enough to join us from member station WUON in Ann Arbor, Michigan.

Justin Pope, thank you so much for joining us.

POPE: Thanks for having me.

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