Scalia also said students of color are being “pushed into schools that are too advanced for them” due to race conscious affirmative action policies. At no point did Scalia say he disagrees with “those who contend” that African-American students who struggle at good universities and are better off at “a slower-track school”. Bert Rein, representing Fisher, said the university can take other steps to diversify its student body without explicit reference to race, including reducing its reliance on standardized test scores. “Maybe it ought to have fewer”, Scalia continued.
Advertisement
The University of Texas at Austin’s current freshman class is 22% Hispanic and 4.5% African-American.
The case in question is about a white student who is challenging the University of Texas at Austin’s admissions policies because she didn’t get in.
Texas has a unique admissions policy known as the Top 10 Percent Plan, in which the highest-ranked students at every high school are automatically admitted into a public university.
Supreme Court Justice Antonin Scalia speaks at the University of Minnesota in Minneapolis on October 20, 2015.
“Like most Americans, I don’t believe that students should be treated differently based on their race”, Fisher said to reporters after exiting the Supreme Court Wednesday morning. But the court could go further, saying the time has come to no longer allow colleges to consider race at all when building their student bodies. For one, there is the question of Fisher’s standing because she has already graduated from another college, which Justice Ruth Bader Ginsburg touched on. In 2011, the Fifth U.S. Circuit Court of Appeals again ruled in favor of UT.
A ruling on the case, expected next year, could impact affirmative action at universities and places of employment. “Is this going to be done in your view in 12 years?”
Some of liberals warned the case could have dire consequences for diversity.
Stuart Taylor, the co-author of Mismatch: How Affirmative Action Hurts Students It’s Intended to Help, and Why Universities Won’t Admit It, relied on this theory during a debate on affirmative action hosted by Intelligence Squared last week.
“They are having racial incidents on campuses where students of colour are complaining that they feel isolated”.
That logic led Fisher’s lead attorney, Bert Rein, to shoot back, “Race is an odious classification”. Alito expressed doubt over the suggestion that minority students admitted under the top 10 percent plan were not at the same level as those accepted under the standard review program, calling it “terrible stereotyping”.
This decision could be a death knell to affirmative action when we are nowhere near racial diversity in higher education. “Will every school have to use the 10% plan?” “That is why it is called strict scrutiny”, said Bert Rein.
“Today they are a majority minority campus – they really are – just because of the demographics”, claimed Rein.
Advertisement
Potentially complicating the outcome, Justice Elena Kagan, who was once the solicitor general, is sitting out the case because she worked on it at an earlier stage at the Justice Department, before joining the court.
