Students demonstrate in favor of affirmative action in Washington, D.C. The Supreme Court is taking up the issue in relations to a case involving the University of Texas., a photo by Pan-African News Wire File Photos on Flickr.
By Stephanie Condon
CBS News/ October 10, 2012, 2:28 PM
Supreme Court scrutinizes university's use of race in admissions
The Supreme Court today returned to the controversial issue of affirmative action, hearing arguments over the University of Texas at Austin's consideration of race in its admissions program.
The fate of the university's program -- and perhaps the way schools nationwide talk about race -- could rest with moderate Supreme Court Justice Anthony Kennedy. The court's four conservatives -- as well as Kennedy -- seemed interested in finding a way to dial back the use of race in college admissions without scuttling the goal of promoting diversity. Some of the most pointed and probing questions came from Kennedy, as well as Chief Justice John Roberts.
If the court decides to overrule the precedent it set in 2003, which allows for a "holistic" approach to racial consideration in college admissions, its political ramifications would run deep. Dozens of high-profile figures and organizations filed amicus briefs in this high-profile case, mostly in favor of affirmative action. Business leaders and former military leaders argued to the Supreme Court that tossing out race-based affirmative action would hurt the training of future military and business leaders.
University of Texas at Austin's admissions program was called into question by Abigail Fisher, a 22-year-old white woman who was rejected from the school in 2008. Fisher filed suit, and her lawyers today argued that the university's consideration of race doesn't meet the standards of a "holistic" approach.
"We're entitled to the equal protection under the laws, and that is what this case has been about from the beginning," Bert Rein, Fisher's lawyer, told reporters after the hearing. While schools have "some interests in diversity," Rein said it should not be "an overriding consideration" in admissions. Race, he said, is "an odious and dangerous classification."
University of Texas at Austin president Bill Powers argued outside of the court that his university has "crafted an admissions policy that includes race as one of many factors" and noted that its consideration of race in admissions was part of the legacy of past Supreme Court decisions. Sixty years ago, the high court ruled against the university's exclusion of black students.
Powers said the current admissions program prepares students to be leaders in a diverse and global community and a ruling against it would be "a setback for our students and society."
Even if the Supreme Court decided to keep its previous precedent in place, it could stil effectively "eviscerate" the use of race in admissions by ruling specifically against the University of Texas system, CUNY School of Law professor Ruthann Robson told CBSNews.com. Since the university already goes to great lengths to consider race as just one element of a student's application, other educators would be hard pressed to defend their own consideration of race.
The significance of the Fisher case was clear from the activity outside of the courtroom today. Around 150 demonstrators from various groups -- student groups, the NAACP, the National Organization for Women -- as well as civil rights leaders like Al Sharpton and Jesse Jackson were outside to make their opinions known.
Only eight justices will rule in this case, since Justice Elena Kagan recused herself, likely because of the high-level federal role she held while the case was moving through lower courts.
If the court splits, it would let the university system stand without setting any kind of precedent. The implications of that outcome would depend on what the written opinions say, but interested parties would also have to consider Kagan's role in future cases.
CBS News correspondent Wyatt Andrews and CBS News producer Julia Kimani contributed to this report.