WASHINGTON — The Supreme Court heard a second round of arguments Wednesday in Fisher v. University of Texas which could determine the use of affirmative action at the University and across the nation.
Despite having heard this case in 2013, Justice Anthony Kennedy said based on the points presented they were “arguing the same case” and suggested sending the case back for another trial.
Abigail Fisher, a white applicant to UT in 2008, first sued the University in 2012, claiming she was denied admission because of her race. On a 7-1 vote, the Supreme Court sent the case down to the 5th Circuit Court of Appeals for more evidence. In 2014, the Court, on a 6-3 vote, said there was nothing unconstitutional about UT’s system. In June 2015, the Supreme Court announced it would hear the case again.
Bert Rein, the attorney representing Fisher, stressed that he believes the University is not clear enough on its use of race as a factor in admissions.
"It’s not used to build a class,” Rein said. “It’s just used to create a racial plus and to increase the number of minority admissions.”
The Fisher brief states they are seeking the $100 Fisher paid for her application fee. When the justices asked if this was all the party is looking for, Rein said it was not.
“The damages we are seeking are broader than that,” Rein said. “By not getting accepted into UT, she had to choose her alternative school and be further away from home. In the state of Texas, there is a significant difference in one’s earnings if you attend the University of Texas or not.”
UT responded to her brief by stating even if race had not been considered, Fisher would still not have been admitted into the University. Despite this, UT argued the Court has upheld its decision that universities can use race to provide diversity and benefits to an education.
The Supreme Court previously heard a case involving affirmative action at UT’s School of Law in 1996, in Hopwood v. Texas. The Supreme Court ruled the practice unconstitutional. Following the case, the Texas Legislature passed the Top 10 Percent law, which automatically admits students in the top 10 percent of their high school class to a Texas public university. UT, however, now admits either the top 7 or 8 percent so it can comply with the law of 75 percent of an incoming class being Texas residents and the remaining percent open to out of state, international or students being considered through the holistic review.
UT attorney Gregory Garre said even though there are critics of the percent plan, it provides opportunities for students that lacked appropriate resources.
“The stereotype is if you have enough diversity in the top 10 percent, then you don’t have to do anymore,” Garre said. “Students are admitted from lower performing schools because of the segregation that exists in the state, and these students benefit from the opportunity.”
When Garre said this process is needed because of how few African-American students there can be in a typical UT classroom, Justice Antonin Scalia said this is not necessarily true. He said some African-Americans may be better fitted for a lesser school.
“I'm just not impressed by the fact [that] the University of Texas may have fewer,” Scalia said. “Maybe it ought to have fewer. I don’t think it stands to reason that it’s a good thing for the University of Texas to admit as many blacks as possible.”
Donald Verrilli Jr., the U.S. solicitor general who filed a brief in support of UT, said this system is still necessary.
“When you are talking about the African-American population of 3 or 400 in a class of 6,000, the idea that there is a material risk of racial isolation in that situation is quite strong,” Verrilli said.
Following the hearing, Fisher thanked her attorneys and said she hopes the case resolves affirmative action.
“Like most Americans, I don’t believe students should be treated differently because of their race,” Fisher said. “Hopefully, this case will end racial classifications and preferences at the University of Texas.”
UT President Gregory Fenves said the use of race and ethnicity in the review is narrow, constitutional and in the best interest of the state.
“I am confident after hearing the arguments this morning that the justices will continue to recognize the incredible value of diversity in an educational environment and our holistic review is critical to achieve that,” Fenves said.
Humanities senior Christle Nwora, who spoke after Fenves, said while the Top 10 percent helps, the University cannot solely rely on it.
“Considering race with so many other factors is critical in acknowledging the full depth a student brings to our campus,” Nwora said. “Institutions of higher education pride themselves on training the next generation of leaders. In order to prepare our policy makers, journalists, teachers and doctors, universities should strive to make their campuses as representative as possible.”
A decision is expected to be made by the end of June.
This article has been updated since its initial publication.