WASHINGTON • As student protests over racial injustice are exploding on campuses across the United States, the Supreme Court is preparing to hear a major case that could put an end to racial preferences in college admissions.
The case to be argued next week was brought by Ms Abigail Fisher, a white woman who was denied admission to the University of Texas at Austin (UT), and who says the university's consideration of race violated the US Constitution's clause on equal protection.
The Supreme Court has forbidden the use of quotas, fixed percentages and other efforts to mirror the racial composition of the general population in admissions decisions, but allows race to be taken into account as one factor among many in an effort to achieve a "critical mass" of minority students.
The point of allowing race to be used is to foster "values beyond race alone, including enhanced classroom dialogue", Justice Anthony Kennedy wrote for the majority when the court first considered Ms Fisher's case in 2013.
That decision did little more than instruct an appeals court to take a more searching look at UT's admissions plan. The appeals court endorsed the plan for a second time last year, and the case is back at the Supreme Court.
"African-American students are telling us in no uncertain terms why diversity on campus is important," said Ms Sherrilyn Ifill, the president of the National Association for the Advancement of Coloured People's Legal Defence and Educational Fund, which filed a brief urging the Supreme Court to sustain UT's race-conscious admissions plan. "They are describing their own marginalisation."
"Justice Kennedy does have the ability to influence whether the conditions are there for the debate even to happen, whether the university is permitted to create an environment in which they can have minority students of varying backgrounds on campus," she added.
But the tense atmosphere on campuses may alter the legal dynamic when the case is argued on Dec 9.
Justice Kennedy may conclude from the recent upheavals that campuses are in the grip of political orthodoxy, one that is impervious to the intellectual diversity that affirmative action is said to promote.
Cornell law professor Michael Dorf said: "It's quite possible that the way the court frames the discussion will be coloured by the justices' views of the campus protests."
The justices are almost certainly paying close attention to the protests, including those at Princeton and at Yale. At both schools, accusations exist that protesters, many of them black, have tried to suppress speech of those who disagree with them. Others welcomed the protests as part of what they called a healthy debate.
The protests call for a new examination of the legacy of racism in the US. But the Supreme Court's precedents have rejected affirmative action at colleges and universities as a remedy for past wrongs. They permit only a single justification for race-conscious admissions plans: creating educational diversity.
"I cannot help but think that even a subconscious link in (the judge's) mind between blacks on campus and the suppression of speech... will hurt UT," said University of Michigan law professor Richard Lempert, who filed a brief supporting UT.
Mr Paul Smith, a lawyer for several Ivy League universities, said the campus demonstrations illustrated the benefits of a student body drawn from many backgrounds.
But others said the protests were a consequence of admitting students with inferior academic qualifications. "Students who are recruited, because of their race, to colleges where the average entering credentials are significantly higher than their own will find themselves at severe academic disadvantage," said Dr John Eastman, a law professor at Chapman University in California.
The Supreme Court has three basic choices. It could reaffirm its earlier decisions allowing the limited consideration of race, or issue a sweeping decision doing away with affirmative action in higher education. Or take a middle position, and strike down only the idiosyncratic admissions plan used by UT.
The school takes in most applicants from Texas under a programme that guarantees admission to top students in every high school in the state. That programme generates substantial racial diversity.
Given that, the Supreme Court could say that UT may not take race into account when picking other students.
NEW YORK TIMES
