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Affirmative action in higher education was once again under attack before the Supreme Court today. In the past, the court has allowed race to be one of the many factors in college admissions. But as the court has grown more conservative, it's moved to reconsider the issue, including a case from Texas that was before the court today for second time. NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: In 1996, the lower courts ruled that the University of Texas could not consider race at all in admission. And the number of minorities promptly plummeted by 40 percent. That, in turn, sent the political and educational establishment scrambling. The result was something called the 10-percent Plan. Enacted by the state legislature, it guaranteed a spot at UT for any student graduating in the top 10 percent of his or her public high school class, and because Texas schools are largely segregated by housing patterns, that ensured a small but significant minority enrollment.
By law, 75 percent of the slots were filled that way, and 25 percent are filled by combining class rank with other factors, including board scores, special skills, economic status and, since 2003, race and ethnicity. That was after the Supreme Court gave the green light to limited consideration of race. Enter Abigail Fisher, a white applicant who claims she was not admitted because of her race. On the steps of the Supreme Court today, she read a statement.
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ABIGAIL FISHER: Like most Americans, I don't believe that students should be treated differently based on their race. Hopefully this case will end racial classifications and preferences in admissions at the University of Texas.
TOTENBERG: UT has flatly denied that Fisher was the victim of racial discrimination. It said that her grades and board scores were sufficiently low that she would not have been admitted under any circumstances.
The Texas case could well decide the fate of affirmative action not just in Texas, not just for state schools, but for private colleges and universities, too. The court is closely divided. Four conservative justices are adamantly opposed to any consideration of race. A fifth - Justice Kennedy - is deeply skeptical but has said that colleges and universities have a compelling interest in having a diverse student body. The court's four liberal justices support affirmative-action programs, but one of them - perhaps the most knowledgeable member on this subject, former Harvard Law School dean Elena Kagan - is recused because she participated in the case when she served in the Obama administration.
So the stage was set today for a battle royale in which Justice Kennedy's vote is likely to be decisive. Abigail Fisher's lawyer, Bert Rein, immediately faced tough questions from Justice Sotomayor, who has said she was the beneficiary of affirmative action.
Assume there was a need for more diversity at UT; what was wrong with the way the UT plan used race, she asked. Rein replied that to comply with earlier Supreme Court rulings, each minority applicant would have to be measured against other applicants one by one. My God, said Sotomayor, that sounds like you'd be using race more than this plan does.
Justice Ginsburg observed that the 10-percent Plan itself is driven by one thing only, and that one thing is race. It's totally dependent on having racially segregated neighborhood schools, she said. Justice Kennedy pressed Fisher's lawyer on another matter.
You argue that UT's goals are insufficiently concrete, he said. What, in your view, would be a sufficiently concrete set of criteria to achieve diversity? Lawyer Rein said that the school would have to conduct studies to determine whether there's a critical mass of minority students that allows for a vibrant exchange of views. Chief Justice Roberts - but how do you do that? Rein acknowledged, it's not easy; but he added, it's not our job to do it.
Justice Alito, a consistent opponent of affirmative action plans, seemed to suggest one measure. Could the university conduct a study measuring classroom diversity? Justice Kennedy picked up on that point, asking whether in the absence of any trial on the facts, the court should send the case back a second time to the lower courts to look at more facts. It does seem to me, he said, we're just arguing the same case; it's as if nothing had even happened. Justice Scalia, incredulous - it was the university's burden, so now we're going to give them a do-over?
Next up was the university's lawyer, Gregory Garre, who told the justices that the 10-percent Plan had failed to provide enough diversity at the University. Justice Alito told Garre that he found that argument troubling because it assumes that the minorities admitted under the 10-percent Plan are not leaders, not dynamic, not change agents. It's really based on terrible stereotyping, he said. It's exactly the opposite, replied Garre. The university wants those students; it applauds those students, but it does not assume that all minorities think alike. It wants people from different experiences, different backgrounds who are going to have different contributions to the class.
Justice Alito again asked whether the university was measuring classroom diversity. Yes, replied lawyer Garre; we've doubled African-American enrollment from 2002 to 2008, and that has increased classroom diversity. Chief Justice Roberts, caustically - what unique perspective does a minority student bring to a physics class? Justice Scalia - there are those who contend that it does not benefit African-Americans to get them into the University of Texas where they do not do well as opposed to having them go to a less-advanced school, a slower-track school where they do well. Lawyer Garre shot back that the academic performance of minorities admitted under UT's affirmative action program was higher than those admitted under the top-10 plan. Frankly, he added, the solution to the problem of student body diversity is not to set up a system where minorities go to separate schools. They are inferior schools, he said, and now is not the time to roll back student diversity in America. Nina Totenberg, NPR News, Washington.
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