- Lester Munson, Legal Analyst
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When Abigail Fisher of Sugar Land, Texas, applied to the University of Texas in January 2008, she offered a compelling case for admission. She ranked 82nd in a class of 674, she had a grade average of 3.6 on a 4-point scale, she scored nearly 1,200 on the SAT, and she was an accomplished cellist.
But less than two months after she completed the application process, the authorities in Austin rejected Fisher's application while both LSU and Baylor admitted her and offered her scholarships. Refusing to accept the Texas decision, Fisher filed a lawsuit asserting that she was rejected because she was white and was "not considered on an equal basis with African-American and Hispanic applicants."
Fisher's battle against affirmative action has become the most closely watched Supreme Court case since Obamacare. And no one is watching more closely as the high court ponders the proper role of race in college admissions than the nation's college basketball coaches.
Three major coaches' organizations have joined Tom Izzo, Johnny Dawkins, Tubby Smith, Paul Hewitt and others in an amicus or "friend of the court" brief that supports the use of race as a factor in college admissions.
Texas operates under a two-tiered admission system that under a mandatory Texas law admits any Texas high school student who finished in the top 10 percent of the graduating class and then uses a series of factors, including race, as it considers other applicants. Fisher was in the 12th percentile of her class and was evaluated under what the university likes to call its "holistic" formula for admission, a calculus that relies on things such as the language spoken at home, the number of parents in the home and the race of the applicant.
It may be "holistic" for the folks in the admissions office at Austin, but for Fisher, it was a violation of the 14th Amendment of the U.S. Constitution that guarantees equal protection of the law. Her challenge to the Texas procedure is the latest chapter in the legal battle over reverse discrimination and affirmative action.
U.S. District Court Judge Sam Sparks, a graduate of the University of Texas, was not impressed with Fisher's claim and dismissed it. If his name sounds familiar, he's the judge in Austin who dismissed Lance Armstrong's lawsuit against the U.S. Anti-Doping Agency. Fisher appealed to the U.S. Court of Appeals in New Orleans where she lost by a narrow 9-7 margin in the court's last vote on her case. Fisher and her legal team then managed to persuade the U.S. Supreme Court to consider her case.
The court's decision to consider Fisher's appeal was a bit of a surprise and has prompted the basketball coaches and nearly 80 other groups to file amicus briefs. The Obama administration, more than 100 universities, several civil rights organizations, more than 50 large corporations, a dozen state governments, and various other labor, religious and civic organizations have joined the coaches in support of the use of race in admission decisions. Another dozen groups, also claiming to be arguing in the public interest, support Fisher in her quest.
On Oct. 10, lawyers for Fisher and the university will argue the case to eight of the court's justices. Justice Elena Kagan withdrew from consideration of the case because she worked on it earlier as solicitor general for the Obama Administration.
While her lawyers pushed the case through the court system, Fisher graduated from LSU and is now working in finance for a major corporation. Although her challenge to the Texas admission process would now appear to be moot, four justices of the nation's highest court voted to add her case to the court's docket, a clear indication that they would consider the substance of her claim.
The court's prevailing rule on the use of race in admissions, a rule that the basketball coaches strongly support, allows the consideration of race. The rule came in a Supreme Court decision in 2003 that approved the use of race in admissions to the University of Michigan Law School.
But the author of the 2003 opinion, Justice Sandra Day O'Connor, retired in 2006 and was replaced by Justice Samuel Alito, who is known to oppose all forms of affirmative action. The coaches and others are worried that a new majority on the issue may change the law in Fisher's case.
Alito, when added to Chief Justice John Roberts and Justices Antonin Scalia and Clarence Thomas, would produce an automatic four votes for the elimination of race in admissions. The fifth and deciding vote would come from Justice Anthony Kennedy, who dissented from the O'Connor opinion that approved the use of race in admission decisions.
"It was an easy step for us to become involved in the case," said Jim Haney, the executive director of the National Association of Basketball Coaches, the nation's largest organization of basketball coaches. "We have vivid memories of predominantly white campuses, and we know that it is extremely helpful for our minority players to see people in their classes who look like them."
The NABC is no stranger to affirmative action disputes. It has intervened in several state referendums that sought to eliminate racial preferences, including a fight against a California ballot initiative that succeeded in eliminating the preference. Haney noted that after the passage of the referendum in 1996, the next entering class of 5,000 at UCLA had only 96 African-Americans.
"It's not really about sports," said Paul Hewitt, the head coach at George Mason who led his team to 24 wins last season. "We recognize the wide disparity in high school educations and that the kids at the lower end need some advantage to level the wide variance. It's a matter of right and wrong."
Other coaches, who wished to discuss the case anonymously as the high court considers it, agreed with Hewitt, and suggested that even though their student-athletes may be admitted under standards applicable only to athletes, it was important to preserve any chance for diversity in the student body.
"We don't want our young men isolated on an island," a highly successful coach at an Eastern university told ESPN.com. "Their educational experience should include the advantages that diversity brings."
The irony is that the racial preference that Fisher is challenging is a minor factor in the impressive diversity on the University of Texas campus. More than 80 percent of the class that Fisher would have joined in 2008 was admitted under the Texas top 10 percent law. Only 1,208 students (19 percent) were admitted under the "holistic" formula that includes race as a factor. Of that second group, only 216 of those students were African-American or Hispanic.
The top 10 percent law produces remarkable diversity as the result of the de facto segregation of public high schools in Texas. In an interview with NPR, Jim Chen, the dean of the Brandeis School of Law at the University of Louisville and a former clerk to Justice Thomas, explained that "because we know how deeply segregated Texas schools are by race we know that if we pick 10 percent from every school and say you are automatically admitted, that in itself will guarantee some measure of [diversity]."
The 10 percent rule, which was recently reduced to 8 percent by the Texas legislature, has now produced a campus in Austin where white students are less than 50 percent of the entire student body. The incoming freshman class this fall was 46 percent white with 23 percent Hispanic, 18 percent Asian, and 5 percent black.
Because the case focuses on a campus so diverse before any racial preference in admissions, the basketball coaches fear, the high court could easily find a basis for reversing its earlier decision that it is permissible for schools to use race as a criterion for admission.
Their attorney, Theodore Ruger, a law professor at Penn, said, "The coaches are interested in preserving the status quo with two levels of diversity, on their teams where the athletes can work together and on the campus where diversity can transform their outlook."
The coaches' attempt to preserve existing laws on affirmative action comes in a maelstrom of Supreme Court politics. The administration of President George W. Bush supported the idea of diversity through the use of rules like the Texas top 10 percent law that have no express preference for race, a rule that Bush signed into law while he was governor of Texas. The Obama administration, in contrast, clearly supports a proactive form of affirmative action that has been at the center of legislative and court battles that began in the civil rights era nearly 50 years ago.
In the middle of the storm are Chief Justice Roberts, who moved from the conservative bloc to the liberal bloc in the Obamacare decision, and Justice Kennedy, who has frequently been the fifth vote in 5-4 decisions.
Will Roberts provide another surprise? Kennedy has never voted in favor of affirmative action in previous cases but has included in his opinions his approval of the idea of diversity as a legitimate objective of college admissions. Which way will he go?
A decision will come next spring. Do not be surprised if in March you see basketball coaches studying the text of a Supreme Court decision as intently as they scrutinize the NCAA selection committee.