Photo: Mark Wilson/Getty Images. While it was always expected that Scalia — a conservative die-hard — would likely take sides against the University, it’s troubling that he’s so quick to dismiss the importance of racial diversity, the assumed value of which is the basis for affirmative action. It’s even more troubling because reliable liberal Justice Elena Kagan has recused herself from judgement in Fisher v University of Texas due to involvement with the case at earlier stages, leaving one less liberal vote to counter Scalia.
This story was originally published at 10:00 a.m.
On Wednesday, the Supreme Court is hearing arguments in Fisher v. University of Texas, the lawsuit filed in 2008 by a young woman who believes she was denied admission to University of Texas because she is white. This is not the first time her case has hit the Supreme Court — why is it there again?
The suit was originally brought after Abigail Fisher applied to University of Texas to be part of the freshman class of 2008 and was denied admission. She then filed a lawsuit against the school, alleging that she had better academic credentials than admitted minority students and had been denied admission based solely on her race. The case has been winding through the courts ever since.
In 2008, the University of Texas had a policy to automatically admit anyone who graduated in the top 10% of their high school class. Fisher was in the top 12%, but still had a shot at admission on the basis of other criteria, like extracurricular participation, test scores, and yes, racial diversity considerations. Fisher claims that the school’s admissions policy violated her constitutional rights under the Fourteenth Amendment by admitting less-qualified minority students because they fit the University’s push for a racially diverse student body. The school has countered that Fisher’s grades were simply never good enough for her to be admitted to the school.
In 2013, the justices sent the case back to a lower court, ordering the Fifth Circuit of Appeals to retry it under “strict scrutiny” of the admissions policy. The Fifth Circuit (again) found in favor of the University, and Fisher appealed (again), bringing the case back to the Supreme Court. This time, Fisher is bringing new arguments, saying that the appeals court disobeyed SCOTUS’ instruction to carefully examine the role of race in the admission policy.
The stakes here could be very high. Fisher’s basis for her case is that the way the school considered race in the admissions process is unconstitutional, even if its goal of racial diversity is important. The case could rest on the question of how and whether it is constitutional to make special considerations for non-white applicant groups — the entire basis for affirmative action.
The court has given some skepticism to older laws intended to promote racial equality. In 2013, SCOTUS struck down a key section of the Voting Rights Act that gave special consideration to the ability of minority individuals to vote. In the decision, the majority said that “our country has changed” since the time of the Civil Rights Movement, when robust racial equality laws were necessary. While the Court could bump the Fisher case once again to the Fifth Circuit court, it’s not impossible that SCOTUS members could be willing to entertain a question of institutionalized racial bias in 2015.
No matter whether the court decides to judge the case on its own, Abigail Fisher has grown past the circumstances of the lawsuit. She’s since attended and graduated from the University of Louisiana, and the only thing she would get out of a win here is the $100 she paid for her University of Texas application fee.
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