Abigail Fisher is a slight young woman with strawberry blond hair, a smile that needs little prompting, a determined manner and a good academic record. She played soccer in high school, and she is an accomplished cellist.
But the university she had her heart set on, the one her father and sister had attended, rejected her. “I was devastated,” she said, in her first news interview since she was turned down by the University of Texas at Austin four years ago.
Ms. Fisher, 22, who is white and recently graduated from Louisiana State University, says that her race was held against her, and the Supreme Court is to hear her case on Wednesday, bringing new attention to the combustible issue of the constitutionality of racial preferences in admissions decisions by public universities.
“I’m hoping,” she said, “that they’ll completely take race out of the issue in terms of admissions and that everyone will be able to get into any school that they want no matter what race they are but solely based on their merit and if they work hard for it.”
The university said Ms. Fisher would not have been admitted even if race had played no role in the process, and it questioned whether she has suffered the sort of injury that gives her standing to sue. But the university’s larger defence is that it must be free to assemble a varied student body as part of its academic and societal mission. The Supreme Court endorsed that view by a 5-to-4 vote in 2003 in Grutter v. Bollinger.
University officials said that the school’s affirmative action programme was needed to build a student body diverse enough to include minority students with a broad range of backgrounds and for the campus to have a “critical mass” of minority students in most classrooms. Interaction among students in class and around campus, said Kedra Ishop, the university’s director of admissions, helps students overcome biases and make contributions to a diverse society. “The role of U.T. Austin,” Dr. Ishop said, “is to provide leadership to the state.”
The majority opinion in the Grutter case, written by Justice Sandra Day O’Connor, rejected the use of racial quotas in admissions decisions but said that race could be used as one factor among many, as part of a “holistic review.” Justice O’Connor retired in 2006, and her replacement by Justice Samuel A. Alito Jr. may open the way for a ruling cutting back on such race-conscious admissions policies, or eliminating them.
Admissions officers at colleges and universities almost universally endorse the idea that students from diverse backgrounds learn from each other, overcome stereotypes, and in so doing prepare themselves for leadership positions in society. Many critics of affirmative action say that there is at best a weak correlation between race and having a range of views presented in the classroom.
Others say the Constitution does not permit the government to sort people by race, no matter how worthy its goal. “While racial diversity on college campuses is beneficial, it cannot be attained by racial discrimination,” said Edward Blum, an adviser to Ms. Fisher and a driving force behind the Fisher case.
The competing arguments are hard to test, but a recent visit to a freshman seminar at the University of Texas at Austin suggested that the intellectual life of undergraduates there is varied and vibrant.
The course was called Debates on Democracy in America, and the topic that day was “The Known World,” Edward P. Jones’s novel about a black slave owner.
It was only the third week of class, but the 18 students, of all sorts of ethnicities and backgrounds, talked easily and earnestly about contemporary echoes of slavery. An Asian student mentioned cheap labour in China. A Hispanic one talked about the ways employers in the United States take advantage of illegal immigrants.
Other comments ran counter to possible stereotypes.
D’wahn Kelley, a black student, said he hesitated to condemn the slave owner in the novel too harshly.
“You’re judged on what you know, not what you don’t know,” he said, referring to the limits of the character’s moral imagination. “If you wanted to be successful, you had a right to own slaves.”
In response, Ashley Vasquez, a Hispanic student, said the she rejected “the whole idea that you have to learn right and wrong.”
“It’s hard for me to think,” she said, “that you can go about your day thinking, ‘Oh, I’m going to own a human being.’ ”
Top Ten programme
Three-quarters of applicants from Texas are admitted under a programme that guarantees admission to the top students in every high school in the state. (Almost everyone calls this the Top Ten programme, though the percentage cutoff can vary. Ms. Fisher barely missed the cutoff.) The remaining Texas students and those from elsewhere are considered under standards that take account of academic achievement and other factors, including race and ethnicity.
The Top Ten programme has produced substantial racial and ethnic diversity.
In the fall of last year, freshmen who enrolled under the programme were 26 per cent Hispanic and six per cent black. Texas is 38 per cent Hispanic and 12 per cent black.
The practical question in Austin is what eliminating the additional race-conscious admissions programme would mean for seminars like the one on democracy, for lecture classes and for interactions in cafeterias and dormitories.
The university said the Top Ten programme was a blunt instrument and that classes in many subjects have few or no minority students. It adds that the diversity generated by the Top Ten programme is “mostly a product of the fact that Texas high schools remain highly segregated in regions of the state,” which “limits the diversity that can be achieved within racial groups.”
Among the kind of student excluded by the Top Ten programme, the university said is “the African-American or Hispanic child of successful professionals in Dallas who has strong SAT scores and has demonstrated leadership ability in extracurricular activities but falls in the second decile of his or her high school class (or attends an elite private school that does not rank).”
Ms. Fisher’s lawyers called that “a newly minted interest in elitism dressed up as ‘intra-racial’ diversity.” They added that the university is making the unseemly pitch for “its preferred kind of minorities” at the expense of white students like Ms. Fisher with similar qualifications.
Talking in the hallway after the seminar, Joao Eloy, who was admitted outside the Top Ten programme, said he had mixed feelings about the university’s approach. “My only concern is if diversity becomes a priority above merit,” he said, adding that he was wary of any system that “punishes Asians and poor whites, to name a few.”
But Mr. Eloy, who said his heritage was Brazilian (making him Latino but not Hispanic, he said), said classrooms were enriched by a mix of voices. “The different perspectives help a lot,” he said. “It makes it really interesting.”
Nosa Aimuyo, whose parents are Nigerian immigrants and who was also admitted outside the Top Ten programme, said race-conscious admissions were needed to address “disparities in opportunity between high schools, which disproportionately affect minorities.”
In an interview in his office in Austin, William C. Powers Jr, the university’s president, said the attributes that the university seeks have many dimensions. “We want diversity in terms of economic background, first generation, geography, inner city, suburban middle class,” he said.
Asked what he would say to Ms. Fisher, whose own background is middle class, about her disappointment at being rejected, Mr. Powers paused for a moment.
“We look at everyone’s holistic characteristics,” he said. — New York Times News Service