- The Washington Times - Tuesday, February 21, 2012

The Supreme Court is wading into the sticky issue of race as a factor in college admissions, setting the stage for a highly charged legal debate in the middle of a presidential race over the constitutionality of affirmative-action policies in higher education.

The high court said Tuesday that it would hear this fall a challenge brought by a college student, Abigail Fisher, who says her civil rights were violated when she was denied entry to the University of Texas because she is white. It is the first university affirmative-action case in nearly a decade.

The decision could have broad implications for hiring and selection policies based on race in education, government contracting and other areas.

The University of Texas admits most students who finish in the top 10 percent of their high school classes, and the remaining spots are awarded based on a variety of factors, including a desire to achieve racial diversity.

Other schools have adopted similar policies. The approach is supported by the court’s 2003 ruling in the Grutter v. Bollinger case, in which the justices decided that the University of Michigan Law School could use race as one factor in determining whom to accept.

Some viewed the process of avoiding racial “quotas” while still weighing skin color as an acceptable middle ground that should please both sides of the argument.

In reality, the approach has only generated more controversy.

“Some complained that too few blacks and Hispanics are admitted under these plans. Others cried that the plans deprived too many whites of admissions slots,” said Tomiko Brown-Nagin, a professor at the University of Virginia School of Law. “That conundrum is what the Fisher case is all about.”

The case, like others before it, is generating emotional reactions from both sides. Critics of the policies in Texas and Michigan see them as reverse discrimination, with white students such as Ms. Fisher denied entry so the school can achieve the politically correct amount of diversity. Academic and extracurricular achievements, they argue, should be the only factors in admission, and institutions do a disservice to all students by separating them by racial factions.

“Racial diversity in a student body does not guarantee a diversity of experience and perspectives. It is unrealistic and wrong to try and pigeon-hole people by their race,” said Joshua Thompson, an attorney with the Pacific Legal Foundation, a conservative nonprofit advocacy group that filed a friend-of-the-court brief urging the justices to reverse their 2003 Michigan decision.

“A policy of race-based preferences and discrimination in admissions is not just unfair, it is unconstitutional. With the Fisher case, the court has an opportunity to give greater force to this core constitutional mandate for fairness and equality,” he said.

Supporters of the procedures see racial consideration as a pathway into college for many minority students, particularly those who come from low-income families or attended subpar schools.

John Payton, president of the National Association for the Advancement of Colored People’s Legal Defense Fund, called the method a “workable standard for colleges and universities to select student bodies.”

“The benefits of diversity are unquestionable,” he said. “We trust that the court will reaffirm that the educational benefits of diversity are a compelling interest that colleges and universities can and should pursue.”

Mr. Payton and others are urging the court to reaffirm the 2003 decision, but the panel’s makeup has changed dramatically since then and several conservative justices are on record opposing the use of race as a factor in school admissions.

In 2007, the court struck down a Seattle policy that used skin color to divide elementary students equally throughout the city’s school system. In the majority opinion, Chief Justice John G. Roberts Jr. called the schools’ methods “extreme.”

“The way to stop discriminating on the basis of race is to stop discriminating on the basis of race,” he wrote.

Liberal-leaning Justice Elena Kagan, who as the Obama administration’s solicitor-general worked on the Fisher case at the lower-court level, has recused herself. Some analysts think her absence makes the outcome of the case all but certain.

“The justices will have the opportunity to revisit and likely narrow the circumstances under which the universities can use race-sensitive measures,” Ms. Brown-Nagin said.

Another potential indicator of how the court may rule is the 2009 New Haven firefighters case, in which the justices said the Connecticut city had violated the civil rights of 20 firefighters by throwing out the results of a promotion exam because not enough blacks had passed it.

Much like Ms. Fisher’s contention, the firefighters - 19 of them white and one Hispanic - argued that they were harmed by policies designed to help certain racial groups.

Arguments in the Fisher case are likely to begin in October. It’s the latest addition to an already packed Supreme Court docket, highlighted by the widely anticipated case of President Obama’s health care initiative.

• Ben Wolfgang can be reached at bwolfgang@washingtontimes.com.

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