Fisher vs. University of Texas – one girl against Obama and corporate America

University of Texas Austin
University of Texas Austin
The University of Texas at Austin

WASHINGTON — Last month the Obama administration threw its support behind the University of Texas’ use of race as a standard in its admissions policies, asking the Supreme Court not to interfere with the consideration of racial preferences in college admissions.

Abigail Fisher, who was denied admission to the Univerity of Texas in 2008 on the basis that she was white, has filed suit before the US Supreme Court in a bid to overturn affirmative action at the university level. In her submission before the court, she argues that the university has imposed a racial quota system that excluded her for the sake of admitting students of lesser ability. As a result, her civil and constitutional rights were violated.

Arguments in the case will start on October 10, not long before the US presidential election and are bound to attract national attention in America, as well as all other countries where affirmative action and racial quotas are being applied, such as South Africa.

According to a recent article in Forbes magazine, dozens of groups have weighed in as the Supreme Court prepares to hear oral arguments over the constitutionality of affirmative action.

Everyone from professors (one group calls itself the “Empirical Scholars,” another, the “Texas Association of Scholars”) to think tanks (the Cato Institute) to advocacy organizations (the NAACP) to universities (Brown University) to student groups (the National Black Law Students Association) to various state and local governments (California) and public officials (Senate Majority Leader Harry Reid) have submitted amicus briefs trying to influence the Court in what is likely to become one of the most controversial decisions of its upcoming term.

The present case seeks to overturn a previous ruling in Grutter v. Bollinger in 2003, which again opened the door wide for anti-white racial preference policies in America. In that case, Big Business also supported the argument for affirmative action. In a filing to the Court at the time, 65 corporations with more than a trillion dollars in annual revenues – including Intel, Merck, Boeing, and Coca-Cola – had underligned the importance of affirmative action in their “continued success in the global marketplace.”

The Court took notice of their concerns.  The 5-4 majority upholding the University of Michigan Law School’s admissions policy emphasized these efforts to establish a diverse workforce to meet the challenges of a global economy in Grutter v. Bollinger, the key ruling stemming from the pair of lawsuits.

“What is more,” former Justice Sandra Day O’Connor wrote in Grutter at the time, “high-ranking officers and civilian leaders of the United States military” also looked for a “racially diverse officer corps.”  O’Connor’s opinion elaborated on the military’s use of affirmative action to ensure “an officer corps that is both highly qualified and racially diverse.”  As several retired military leaders with decades of experience had urged the Court, she applied this line of reasoning from the military setting to the nation’s public universities.

Abigail Fisher
Abigail Fisher, who was denied admission to the University of Texas because of race preference

For Fisher v. University of Texas, the US Justice Department, in a court brief co-signed by several other government agencies, told the high court that a diverse college population was in the university’s — and the government’s — best interests. “The armed services and numerous federal agencies have concluded that well-qualified and diverse graduates are crucial to the fulfillment of their missions,” Solicitor General Donald B. Verrilli said.

The court brief was cosigned by lawyers from the departments of Defense, Education, Commerce, Labor and Health and Human Services.

The Supreme Court’s ruling on the University of Texas’ admission program will be its first ruling on affirmative action in higher education since 2003.

However, the same groups in the military and corporate America that supported race preference in 2003 have largely repeated their arguments in a new round of amicus briefs filed in response to Fisher.

“Fulfillment of the national security interest in officer corps diversity must not be imperiled by a sweeping ruling against race-conscious admissions,” argued the brief filed on behalf of General Anthony C. Zinni, Admiral Dennis C. Blair, General Wesley K. Clark, and dozens of other high-ranking former officials from all branches of the US armed forces.

Likewise, dozens of the nation’s largest companies – including Pfizer, Starbucks, and Wal-Mart to name a few – also echoed the arguments put forth nine years earlier by a similar list of corporations.

Texas admits most of its students because they rank among the top 10 percent in their high school classes. Fisher’s grades did not put her in that category. For other students, Texas officials say that race is considered among many factors, including academic record, personal essays, leadership potential, extracurricular activities, and honors and awards. The school says race is not used to set quotas, which the high court has previously rejected.

“Race is not considered on its own, and it is never determinative of an applicant’s admission by itself,” Verrilli said. “Rather, race is one of a number of contextual factors that provide a more complete understanding of the applicant’s record and experiences. That is a far cry from impermissible racial balancing.”

The Texas policy has been upheld by federal appeals courts, which said it was allowed under the high court’s decision in Grutter vs. Bollinger in 2003 that upheld racial considerations in university admissions at the University of Michigan Law School. But Fisher appealed to the current Supreme Court, which is considered to be more conservative than the one that ruled in 2003 and more likely to jettison that decision or at least limit when colleges may take account of race in admissions.

Before adopting race as part of its admission policy, Texas’ student body was 21 percent African-American and Hispanic. By 2007, the year before Fisher filed her lawsuit, African-Americans and Hispanics accounted for more than a quarter of the entering freshman class.

“Race is considered not on its own, but as a piece of information that provides valuable context in understanding an applicant’s achievements and his likely contributions to the university,” Verrilli said. “That individualized consideration is designed to work in conjunction with the Top 10 plan to enable the university to construct a class that is diverse in all ways valued by the institution.”

The case is Fisher v. University of Texas at Austin, 11-345.

– AP, Forbes and various other sources