Lawyers discuss Fisher vs. Texas case at University of Maryland forum

Updated Nov 13, 2012

College Park, Md.–As the U.S. Supreme Court readies its decision on the Abigail Fisher v. the University of Texas case, colleges and universities administrators across the country are taking the opportunity to discuss what the court’s decision might mean for their campuses.

At the University of Maryland Wednesday night, the School of Public Policy hosted a panel on the topic, outlining the history of race in college admissions, the details of the case, its precedents and what’s at stake for selective colleges and universities in the United States. About 80 people attended the event, which featured four attorneys on the panel–all of whom favor the use of race in college admissions.

“After a generation of steps taken to provide a measure of support for historically underrepresented minorities, the entire strategy is undergoing a searching reexamination, not only in universities. but also in society at large,” said Don Kettl, dean of the School of Public Policy. “We’re rethinking society’s obligation to help groups that for so long were so disadvantaged–and how to balance that with the expectations of people today who aren’t part of those groups and expect to compete on a completely level field.”

In 2008, Abigail Fisher, a White student from Sugar Land, Texas, sued the University of Texas, claiming that the university denied her admission because of her race. The Supreme Court heard oral arguments Oct. 10.

At least two of the panelists have close ties to the case and its precedents. Brigida Benitez, now a partner at Steptoe and Johnson LLP, worked for six years on the precedent-setting Grutter v. Bollinger case.

In 2003, the Supreme Court ruled that colleges and universities could use race as a limited factor in college admissions but could not use a rigid point system to increase minority enrollment. Such point systems were struck down by the court in the Gratz v. Bollinger case, which was argued concurrently with Grutter.

Benitez said that the issue of race in college admissions is “settled” and that if the Supreme Court strikes down Grutter, the decisions could have sweeping implications for college admissions. The concept of holistic review, an individualized assessment of a student’s application, may be under attack.

With an eye toward, Grutter, the University of Texas adopted a tiered admissions policy, which offers automatic admission to the top 10 percent of students from all high schools in the state. Fisher did not meet that criteria.

The next tier uses a host of factors–including race–to admit qualified applicants. Other factors include the admissions essay, recommendations, family legacy at the university, as well as socioeconomic status.

Fisher was not admitted under that criteria, but was offered a spot in another university in the Texas state system, which would have given her the opportunity to transfer to the flagship campus. Instead, she chose to enroll at Louisiana State University, and graduated with a finance degree.

“It seemed from the briefs and the argument that there’s not a lot of discussion about the first prong, in terms of whether achieving diversity is a ‘compelling interest. It’s where the rubber meets the road and you get to narrow tailoring,” Benitez said. “There, it’s unclear what the court’s going to do. It may rule against the University of Texas, which, while keeping the principle of diversity, may still have very adverse consequences, because If a program like this doesn’t comply with Grutter, then the question is, what does?”

Another panelist, Joshua I. Civin, counsel to the director of litigation at the NAACP Legal Defense Fund (LDF), argued in support of Texas’ race-conscious admissions policy on behalf of LDF and the Black Student Alliance at UT Austin (BSA). He also was in the courtroom during arguments. The appeals court upheld the constitutionality of the admissions policy.

Civin said that diversity on campus is important to provide pathways to leadership for minority students and that these students–particularly those LDF represents–face a “real and persistent racial hostility on UT’s campus.” A key argument against the admissions policy, Civin said, is that the underrepresented minorities who get into the university under the ten percent rule are “enough,” that somehow there should be a “cap on diversity.”

The attorneys for the University of Texas argued that the admissions policy is necessary to reach a “critical mass” of minority students, although the definition of that term is unclear. It is not and should not be considered a racial preference policy, Civin said. It’s about race in context.

“Race still matters in American society–on a whole host of levels,” Civin said. “We need to disaggregate and understand the differences within and among minority communities. “