- The Washington Times - Tuesday, October 9, 2012

For the first time in nearly a decade, the issue of race as a factor in college admissions comes before the Supreme Court on Wednesday, thrusting affirmative action back into the national spotlight.

The justices will begin hearing arguments Wednesday in the closely watched Fisher vs. the University of Texas case, which, if the court rules broadly, could have far-reaching consequences for hiring and other policies beyond higher education.

“It’s likely, I think, to perhaps become the most important case in history on racial preferences,” said Stuart Taylor Jr., a Supreme Court scholar and co-author of the new book “Mismatch,” which examines affirmative action and its use by institutions of higher education.

The case was brought by a white college student, Abigail Fisher, who contends that her civil rights were violated after she was denied entry to the university because of her skin color. Ms. Fisher has since graduated from Louisiana State University but told The New York Times in a rare interview this week that she was “devastated” by her rejection to the University of Texas, her family school.

The school admits nearly all students who finish in the top 10 percent of their high school classes. The remaining spots are awarded based on a variety factors, including the university’s effort to achieve racial diversity on its campuses.

Ms. Fisher argues that the school accepted students of lower academic achievement solely because of their skin color and ignored her above-average grades only because she is white.

Many other schools use similar systems. The high court ruled in 2003 that the University of Michigan Law School could use race as one of several factors in deciding whom to admit, though specific racial quotas aren’t allowed.

That ruling has over the past nine years generated more confusion and controversy over what colleges can and cannot consider when choosing their students.

Proponents of racial considerations believe they are necessary to forge a pathway into college for many minority and low-income students, particularly those who come from poor school systems. Many also argue that they help form a diverse student body, thereby enriching the educational experience of all pupils.

Critics, however, say they are a form of racial discrimination and an impediment to students such as Ms. Fisher, who themselves become disadvantaged because of race.

“Even if there are some educational benefits [to having more minority students], they have got to be weighed against the costs that are inherent in engaging in this discrimination,” said Roger Clegg, president and general counsel of the Center for Equal Opportunity, speaking at an affirmative action panel discussion Tuesday at the Cato Institute.

Mr. Clegg and many others support the outright elimination of all racial preferences in college admissions and hopes the court strikes them down once and for all in the Fisher case.

Dramatic changes in the makeup of the Supreme Court since its 2003 decision could offer some clues to which way the justices will rule. Those changes are, for racial-preference opponents, a reason to be optimistic.

In 2007, the court struck down a Seattle system that divided the city’s elementary-school students equally along racial lines. Chief Justice John G. Roberts Jr., who wrote the majority opinion, called those methods “extreme.” In 2009, the court ruled that New Haven, Conn., violated the civil rights of 20 firefighters after it threw out the results of a promotion exam because not enough blacks had passed it.

With liberal-leaning Justice Elena Kagan recusing herself from the case — she worked on it at a lower-court level as the Obama administration’s solicitor general — the key vote could again lie with Justice Anthony M. Kennedy.

But the biggest question is whether the court will go big and issue a landmark ruling that forever changes affirmative action policies in the U.S., or instead deal solely with the University of Texas system and whether it is constitutional.

“That’s difficult to answer, but it may turn out to be a huge deal. If the court can find the five votes for a strong statement on this issue, that will have an enormous impact,” said Paul Horwitz, a professor at the University of Alabama’s School of Law.

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

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