Court to review race in college admissions

White student sued University of Texas

Heman Marion Sweatt and Abigail Noel Fisher both wanted to attend the University of Texas at Austin.

Both claimed their race was a primary reason for their rejection. Both filed civil rights lawsuits, and the Supreme Court ultimately agreed to hear their separate appeals -- filed more than half a century apart.

Their cases share much in common -- vexing questions of competition, fairness, and demographics -- and what role government should play when promoting political and social diversity.

But it is the key difference between these plaintiffs -- separated by three generations and a troubled road to "equality" -- that now confronts the nation's highest court: Sweatt was black, Fisher is white.

Sweatt's 1950 case produced a landmark court ruling that set the stage for the eventual end of racial segregation in public facilities.

Fisher's case will be heard by the justices Wednesday. The question here could come down to whether a majority on the bench believes affirmative action has run its course -- no longer necessary in a country that has come far to confront its racially divisive past, a country that has a president who is African-American.

"There's a good chance that affirmative action, at least in the case of education, is on the chopping block," said Thomas Goldstein, a Washington appellate attorney and editor.

"The Supreme Court 10 years ago approved the use of race as a factor. But it's just changed. (Now-retired Justice) Sandra Day O'Connor isn't there and she was the decisive vote. And the current conservative majority is just very suspicious of the use of race in government decision-making."

At issue: do the flagship state universities' race-conscious admission policies violate the rights of white applicants?

The timing of the arguments is not lost in a presidential election year, as the justices wade gently into this divisive issue. The court and its recent rulings on health care reform and illegal immigration have ensured that the court -- however it decides the Texas appeal -- will be a major campaign issue. A ruling in this petition, however, will not likely be issued until at least early 2013.

Fisher individually sued the state university after her college application was rejected in 2008 when she was a high school senior in Sugar Land, Texas. She claims the individualized, discretionary admission policies violate her rights, and favor African-American and Hispanic applicants over whites and Asian-Americans.

The state of Texas provides for a hybrid admission policy: automatic acceptance to its university's main campus in Austin for in-state students finishing in the top 10 percent of their high schools, ensuring a measure of nonsubjective diversity. Three-fourths of the in-state student body gets in this way.

Fisher just missed that opportunity, so had to compete in a separate pool of students seeking to attend the highly competitive school. It is that selection process that is before the court.

"If any state action should respect racial equality, it is university admissions," she and her lawyers told the high court in their written brief. "Selecting those who will benefit from the limited places available at universities has enormous consequences."

The school, with a large 52,000 student body, defends its "holistic" policy of considering race as one of many factors -- including test scores, community service, leadership and work experience -- designed to create a diverse campus.

"We must have the flexibility to consider each applicant's unique experiences and background so we can provide the best environment in which to educate and train the students who will be our nation's future leaders," said school administrators.

The Obama administration agrees, and is backing the school, saying to grow a nation built on differing complexions and backgrounds will depend on future leaders "who possess the understanding of diversity that is necessary to govern and defend the United States."

The NAACP Legal Defense and Educational Fund is among more than five dozen outside groups filing legal briefs in support of the school. Many of them worry the conservative high court majority is poised to strike down or severely limit affirmative action.

"A broad ruling could have very far reaching effects, and could possibly affect the pathway to opportunity for minority students at a range of universities," said Debo Adegbile, the group's acting president. "Not just at state universities, but at all institutions of higher education."

But groups opposed to the state's policies think the time has come to rethink how affirmative action will be applied in the future, if at all.

"Using race in admissions decisions, to achieve diversity, amounts to stereotyping people by their race," said Joshua Thompson of the conservative Pacific Legal Foundation, which filed a legal brief in support of Fisher. "Racial diversity in a student body does not guarantee a diversity of experience and perspectives. It is unrealistic and wrong to try to pigeonhole people by their race."