The future of affirmative action in education--not just for colleges but potentially for K-12 schools as well--may be on the line when the U.S. Supreme Court takes up a race-conscious admissions plan from the University of Texas.
That seems apparent to the scores of education groups that have lined up behind the university with friend-of-the-court briefs calling on the justices to uphold the plan and continue to recognize the need for racial diversity in the nation's schools and classrooms.
"Long identified as essential to the missions of many postsecondary institutions and school districts in the United States, diversity has emerged as central to our nation's overarching goals associated with educational excellence," says a joint brief by the College Board, the National School Boards Association, and several other K-12 groups and others that deal with college admissions.
In an interview, Francisco M. Negron Jr., the general counsel of the NSBA and a co-author of the brief, emphasized the stakes in the scope of the issues posed in Fisher v. University of Texas at Austin (Case No. 11-345), which is set for arguments Oct. 10.
"This is predominantly a higher ed. case, but our interests in K-12 diversity are not dissimilar to the interests of higher education," he said.
The Fisher case is one of the biggest of the court's new term, and for now is the only education case on the docket.
It involves Abigail Fisher, a white applicant who was denied admission to the University of Texas at Austin in 2008 under the university's "holistic review" program. That program may take race into account for the quarter of places in UT-Austin's entering freshman class not filled by the Texas law that guarantees admission to high school students who finish in the top 10 percent of their graduating classes.
Lawyers for Ms. Fisher say that but for the consideration of race, she would have been admitted. They say that the Texas program should be struck down under the 14th Amendment's equal-protection clause because it fails the requirement for a narrowly tailored race-conscious program set forth in the Supreme Court's 2003 decision in Grutter v. Bollinger. That 5-4 decision involved the University of Michigan law school, and the majority opinion by then-Justice Sandra Day O'Connor expressed a desire for all use of affirmative action in education to end within 25 years.
Opponents of race considerations would be happy to speed up that end point.
"The mood of the country concerning racial issues has changed over the last 10 years," said Edward Blum, the founder of a Washington nonprofit group, the Project on Fair Representation, that is behind Ms. Fisher's case. "To argue today that children of successful minority parents need affirmative action to be admitted to elite colleges and universities just seems to ring hollow."
Ms. Fisher, who graduated this year from Louisiana State University in Baton Rouge, is not giving interviews.
Diversity Within Groups
The University of Texas and other state higher-education institutions were barred from considering race in admissions in 1996 by the U.S. Court of Appeals for the 5th District, in New Orleans, in a decision known as Hopwood v. Texas. That led state lawmakers to adopt the Top Ten Percent plan, which has aided the admission of Hispanics from the Rio Grande Valley, for example, and black students from urban systems in and around Dallas, Houston, and other cities.
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