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Will the Supreme Court shred affirmative action?

Records show Abigail Fisher wasn't victimized by affirmative action because she is white. Her case may undo the policy anyway.

It is a grim irony: As college students around the country protest that universities haven’t gone far enough to correct racial injustice, the Supreme Court may shred what is left of affirmative action in public education. And it may do so in the name of a young white woman who a court ruled could never have been accepted to her first choice school, no matter what her race.

On Wednesday, the court heard oral argument in the case of Abigail Fisher, a young woman who applied to the University of Texas eight years ago, and has been suing the school for seven. It is Fisher’s second trip to the Supreme Court. Fisher, who has already graduated from another college, has argued that UT, which did not admit its first black student until 1950, violated her constitutional rights by, she said, rejecting her for being white. But the 5th Circuit Court of Appeals – not exactly known for being a liberal bastion – concluded that based on the university’s standards and Fisher’s record, “If she had been a minority the result would have been the same.” It ruled against her and approved Texas's plan.

UT automatically admits three quarters of its students from the top 10 percent of Texas high schools. Because Texas schools are racially segregated, this automatically means the presence of some people of color. (Fisher attended high school in the state, but was not ranked in the admitting bracket.) The rest of the student body is chosen on the basis of “a holistic review of the contents of the applicant’s entire file, including demonstrated leadership qualities, extracurricular activities, honors and awards, essays, work experience, community service, and special circumstances, such as the applicant’s socioeconomic status, family composition, special family responsibilities, the socioeconomic status of the applicant’s high school, and race,” as the 5th circuit described it.

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The question before the court is whether putting race on that list – “a factor of a factor of a factor,” as the university put it -- violates the constitution's guarantee of equal protection under the law.

Fisher was recruited after a three-year search by a conservative activist, Edward Blum, who has spent years trying to persuade the court that remedies to racial injustice are themselves racist. And yet even Blum has admitted that Fisher’s story is not as clear-cut as her complaint would suggest. "There are some Anglo students who had lower grades than Abby who were admitted also," Blum told ProPublica. "Litigation like this is not a black and white paradigm."

Meanwhile, it has been three years since Fisher graduated from Louisiana State University, which UT argues renders her case moot. 

Courts normally look at whether plaintiffs can show they suffered a real injury, or otherwise have "standing" to sue. But none of these issues prevented four justices from voting to hear the case again, even after the lower court, led by a Reagan appointee, applied the Supreme Court’s instructions to take a sterner look at Texas’s plan, and still found it constitutional.

All of this suggests Blum’s mission to undo race-conscious policies has a willing audience among conservatives on the court. That includes Chief Justice John Roberts, who early in his tenure on the court wrote in a school desegregation case, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." Justice Sonia Sotomayor retorted, in a dissent to a 2014 affirmative action case, "The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination." 

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Blum was also behind Shelby County v. Holder, heard the same term as Fisher’s first run. In a 5-4 majority opinion by Roberts, the court gutted the Voting Rights Act on the theory that the states that had been subject to extra federal oversight had sufficiently gotten over being racist. On Tuesday, the court heard another voting rights case Blum helped assemble, Evenwel v. Abbott.

The present affirmative action case, along with another one Blum helped file against private universities, threatens to tear down an infrastructure that some say is already a fairly weak defense against a discriminatory past. Since 1978, the Supreme Court has held that universities can take race into account if they are trying to promote, in the words of a 2003 decision, “the educational benefits that flow from student body diversity.”

That particular rationale, with its instrumental implication that outsiders are allowed in for the edification of whomever is perceived the norm, has rung hollow for some racial justice advocates. Saying affirmative action is constitutional because diversity is good, wrote the Economic Policy Institute’s Richard Rothstein in a piece about the Fisher case on SCOTUS blog, “dodges the nation’s racial legacy and avoids our constitutional and moral obligation to remedy the effects of centuries of slavery and legally sanctioned segregation. Without acknowledging we were doing so, we have engaged in a legal sleight of hand, substituting enriching the educational experience for remedying past injustice in designing affirmative action policy.”

But law is about precedent, and the precedent is diversity, leaving advocates fighting to defend what many already believe is not enough. The original Supreme Court opinion outlining the acceptable contours of affirmative action was written in 1978, when the court was made up of eight white men and Justice Thurgood Marshall. “It must be remembered that, during most of the past 200 years, the Constitution, as interpreted by this Court, did not prohibit the most ingenious and pervasive forms of discrimination against the Negro,” Marshall wrote in his separate opinion. “Now, when a State acts to remedy the effects of that legacy of discrimination, I cannot believe that this same Constitution stands as a barrier.”

More recently, sitting Justice Ruth Bader Ginsburg wrote, “Government actors, including state universities, need not be blind to the lingering effects of ‘an overtly discriminatory past,’ the legacy of ‘centuries of law-sanctioned inequality.’”

Ginsburg was dissenting from the notion that the courts even needed to take another look at Texas’s program, in Fisher's first trip to the court. Now that the case is back, and under the court’s current composition, such a dissent, too, could be slated for a rerun.