Affirmative action in higher education appeared to take a potentially lethal hit on Wednesday, as the U.S. Supreme Court heard arguments testing the constitutionality of a race-conscious admission program at the University of Texas, Austin.
The high court has twice upheld such programs over the past three decades. In 1978 and again in 2003, the court ruled that state colleges and universities may consider race and ethnicity as one of many factors in college admissions, as long as there are no quotas. But since then, the composition of the court has changed significantly, and at Wednesday’s argument, a court majority seemed poised to reverse or severely cut back its earlier decisions.
The case before the court concerns the admissions program at the University of Texas, where 75 percent of applicants are automatically admitted based on high school class rank. Texas law guarantees that students who graduate in the top 10 percent of their class get in. The other 25 percent, those not in the top 10 percent, are admitted under a system that includes grades, board scores, essays and other factors like leadership, awards, community activities, economic circumstances and race.
On the steps of the Supreme Court, University of Texas President Bill Powers defended the university’s program, stating that no university or employer would fill all of its available slots based on grades alone. That would likely leave out individuals who have excelled in specialized areas, served as student body president or won the state math contest, he argued. Such results, said Powers, would be senseless.
Abigail Fisher, a white student who did not make the cut at the university, contends that the university’s consideration of race is unconstitutional. She said she was taught from when she was very young that “any kind of discrimination was wrong” and questions the example the university sets by considering race as a factor in admissions.
Sitting in the courtroom on Wednesday was the author of the 2003 decision on affirmative action, Justice Sandra Day O’Connor. But the retired justice was in the audience, replaced on the bench by Justice Samuel Alito, a dedicated foe of affirmative action. Also sitting in the audience was the widow of Justice Thurgood Marshall, the man who led the legal fight against school segregation.
On the bench were four justices who have records firmly opposed to affirmative action. A fifth justice, Anthony Kennedy, voiced strong skepticism about the university’s program.
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