Affirmative Action Faces a Supreme Test

All Asians are geniuses.
African-Americans excel at basketball. White people are racists. Attributes —
aka  stereotypes — such as these cannot realistically be applied to an entire
race, but in theory they often are by Americans whose formative years are spent
only among people who look just like them and grow up believing these and other
racial stereotypes.

Diversity matters and it's one of
the arguments that U.S. Supreme Court justices will hear on Oct. 10 in defense of
the use of affirmative action in higher education.

In Fisher vs. University of Texas at Austin,
plaintiff Abigail Fisher, who is white, contends that the university, which considers
race as one factor in the admissions process, discriminated against her when it
rejected her undergraduate application in 2008.

Her disappointment is
understandable. Fisher had top grades and SAT scores and other great
qualifications. But UT, which in 1950 defended before the Supreme Court a state
law that barred admission to African-Americans, now has a policy that guarantees
admission to students in the top 10 percent of their high school graduating
class. The goal is to ensure that the university's student body includes a broad
range of backgrounds and a "critical mass" of minority students in as many
classrooms as possible.

"Diversity matters because for far too many,
college is the first time that students have meaningful opportunities to
interact and test their ideas and preconceptions with others," said Debo P.
Adegbile, acting president and director-counsel of the NAACP Legal Defense
and Educational Fund, in a conference call with reporters. "It's actually a
critical period where biases can be challenged and replaced with experiences
that allow people to appreciate just how much all of us share and to leave those
stereotypes that we've heard about behind."

Because Fisher ranked 82nd in
a class of 674, she didn't qualify for automatic admission. In addition, The
New York Times reports, university officials say that even without its
affirmative action program, Fisher, whose father and sister are UT graduates,
still wouldn't have been admitted.

Fisher will be the first time
that the court has heard an affirmative action case since 2003, when it upheld
Grutter vs. Bollinger in a five-to-four decision for the
University of Michigan Law School's limited use of affirmative
action.

"The court expects that 25 years from now, the use of racial
preferences will no longer be necessary to further the interest approved today,"
wrote Justice Sandra Day O'Connor, who wrote the majority
decision.

O'Connor, now retired, has been replaced by the more
conservative Samuel Alito. In addition, Justice Elena Kagan, appointed by President Obama, has
recused herself because she previously served as a solicitor general in the
current administration.

But the biggest question mark is Chief Justice
John Roberts, whose
surprise decision to support the Affordable Care Act earlier this year
outraged conservatives. He has previously opposed race-conscious policies. But
could he be the wild card again?

As the justices weigh the merits of
Fisher inside, protesters for and against affirmative action will be
outside the Supreme Court building making their own arguments. They include the
National Black Law
Students Association, which will hold a nation-wide day of action on campuses across the nation. The
organization also will post videos and photos with the catchphrase, "What would
our campus look like without us?"

"I think access to the pathway to
opportunity is really what's at stake. We're not saying that nobody will be able
to go to college, but there will be a substantial diminution in the number of
African-Americans who will be able to have access to top-flight universities and
all of the benefits that flow from that," said Adegbile. "It's not a
hypothetical issue in part because we have some examples, including California,
where the ability to consider race has been taken off the table as a factor in
admissions."