Affirmative Action Faces a Supreme Test

The high court will hear a case that could affect African-American students' access to higher education.

Posted: 10/09/2012 08:32 AM EDT

All Asians are geniuses. African-Americans excel at basketball. White people are racists. Attributes — aka  stereotypes — such as these cannot realistically be applied to an entire race, but in theory they often are by Americans whose formative years are spent only among people who look just like them and grow up believing these and other racial stereotypes.

Diversity matters and it's one of the arguments that U.S. Supreme Court justices will hear on Oct. 10 in defense of the use of affirmative action in higher education.
 
In Fisher vs. University of Texas at Austin, plaintiff Abigail Fisher, who is white, contends that the university, which considers race as one factor in the admissions process, discriminated against her when it rejected her undergraduate application in 2008.

Her disappointment is understandable. Fisher had top grades and SAT scores and other great qualifications. But UT, which in 1950 defended before the Supreme Court a state law that barred admission to African-Americans, now has a policy that guarantees admission to students in the top 10 percent of their high school graduating class. The goal is to ensure that the university's student body includes a broad range of backgrounds and a "critical mass" of minority students in as many classrooms as possible.

"Diversity matters because for far too many, college is the first time that students have meaningful opportunities to interact and test their ideas and preconceptions with others," said Debo P. Adegbile, acting president and director-counsel of the NAACP Legal Defense and Educational Fund, in a conference call with reporters. "It's actually a critical period where biases can be challenged and replaced with experiences that allow people to appreciate just how much all of us share and to leave those stereotypes that we've heard about behind."

Because Fisher ranked 82nd in a class of 674, she didn't qualify for automatic admission. In addition, The New York Times reports, university officials say that even without its affirmative action program, Fisher, whose father and sister are UT graduates, still wouldn't have been admitted.

Fisher will be the first time that the court has heard an affirmative action case since 2003, when it upheld Grutter vs. Bollinger in a five-to-four decision for the University of Michigan Law School's limited use of affirmative action.

"The court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today," wrote Justice Sandra Day O'Connor, who wrote the majority decision.

O'Connor, now retired, has been replaced by the more conservative Samuel Alito. In addition, Justice Elena Kagan, appointed by President Obama, has recused herself because she previously served as a solicitor general in the current administration.

But the biggest question mark is Chief Justice John Roberts, whose surprise decision to support the Affordable Care Act earlier this year outraged conservatives. He has previously opposed race-conscious policies. But could he be the wild card again?

As the justices weigh the merits of Fisher inside, protesters for and against affirmative action will be outside the Supreme Court building making their own arguments. They include the National Black Law Students Association, which will hold a nation-wide day of action on campuses across the nation. The organization also will post videos and photos with the catchphrase, "What would our campus look like without us?"

"I think access to the pathway to opportunity is really what's at stake. We're not saying that nobody will be able to go to college, but there will be a substantial diminution in the number of African-Americans who will be able to have access to top-flight universities and all of the benefits that flow from that," said Adegbile. "It's not a hypothetical issue in part because we have some examples, including California, where the ability to consider race has been taken off the table as a factor in admissions."

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(Photo: Chip Somodevilla/Getty Images)

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