Supreme Court to hear affirmative action case starting Wednesday

With oral arguments on a landmark affirmative action case set to begin in front of the nation’s highest court on Wednesday, members of the higher education world and the Penn community are continuing to express mixed hopes about the court’s ruling.

In Fisher v. University of Texas at Austin, Abigail Fisher — a white woman who was denied admission to the University of Texas in 2008 — is arguing that the school’s policy of using race as a consideration in admissions decisions violates the Equal Protection Clause of the 14th Amendment to the Constitution.

Some argue that ruling UT’s policy as unconstitutional would have broad detrimental impacts for students across the country.

College senior and United Minorities Council Co-Chair Lucia Xiong said the UMC hopes the Court will uphold UT’s policy as constitutional. Affirmative action, she said, is necessary to create equal educational opportunities for disadvantaged students.

“They are unable to get higher scores because of a disadvantaged background,” she said. “But that doesn’t mean they’re incapable of fulfilling the same jobs or getting the same grades once they get to the university.”

Penn currently uses race as a factor in a holistic review process of applicants, according to Dean of Admissions Eric Furda. To voice its support for UT’s policy, Penn joined with the rest of the Ivy League schools, along with other selective institutions like the Massachusetts Institute of Technology, to file an amicus curiae brief in August.

The schools urged the Court to uphold UT’s policy in order to recognize the role diversity plays in students’ college experiences.

Should the Court broadly rule that any consideration of race in college admissions is unconstitutional, it would overturn precedent set in 2003, when it upheld the University of Michigan Law School’s affirmative action policy in Grutter v. Bollinger. Some believe that now is the right time for the Court to change course.

“I think the dirty secret of admissions is how big the racial preferences are right now and how unfair they are,” President of Hernandez College Consulting Michele Hernandez said. “They will take a wealthy black student whose parents both went to Harvard Law School because it looks diverse in the books.”

Hernandez also pointed to her experience as a Dartmouth College admissions officer as evidence that many students admitted through affirmative action are unable to perform at the same level as their peers at top schools. She cited an Oct. 4 New York Times op-ed by Princeton sociology professor Thomas Espenshade, who studied eight elite colleges from 1999 to 2003 and found that half of black students and a third of Hispanic students eventually graduated in the bottom 20 percent of their classes.

As a result, Hernandez said she would support affirmative action based on socio-economic diversity, rather than racial diversity. Others, however, disagreed that the changed approach to affirmative action would have comparable impacts.

“No one who studied the question believes that it will result in anything like the racial diversity in higher education that has been achieved by race-based affirmative action,” said political science professor Rogers Smith, who specializes in constitutional law and supports the UT policy. “The great majority of poor people in the U.S. are white.”

Others similarly argue that changing course from previous rulings that support affirmative action would be a mistake for the Court.

“The educational experience of our students in a context that is going to be different from their own perspective … is critically important,” Furda said.

Smith added that, barring a surprise from the more conservative justices, he expects the Court to overrule all use of racial classifications in admissions as unconstitutional.

After hearing oral arguments Wednesday, the Court’s decision will come by the end of the first term in June, Smith said. Even if the justices surprise most experts by upholding UT’s policy, Furda believes that the case will have significant ripple effects for colleges across the country.

“Either way, the tenor of the conversations I’ve been in is that the type of work is going to be different after June, regardless of what way the decision is,” Furda said. “If we have to change the way we do work, we’re going to change the way we do work.”

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