Landmark Affirmative Action Case in Court Again

Fisher v. the University of Texas could be headed back to the Supreme Court after Wednesday’s 5th Circuit hearing.

Attorney Bert Rein with plaintiff Abigail Noel Fisher after the U.S. Supreme Court heard arguments in her case on Oct. 10, 2012, in Washington, D.C.
Attorney Bert Rein with plaintiff Abigail Noel Fisher after the U.S. Supreme Court heard arguments in her case on Oct. 10, 2012, in Washington, D.C. Mark Wilson/Getty Images

The buildup was big: First the Supreme Court eviscerated a portion of the Voting Rights Act. Then it declared that a federal ban on gay marriage was unconstitutional. But when the justices ruled back in June on a case challenging an affirmative action program at the University of Texas at Austin, they sent the case, Fisher v. The University of Texas, back to a lower court.

And on Wednesday the next chapter in the now five-year-old Fisher case began, with the U.S. Court of Appeals for the 5th Circuit hearing a new round of oral arguments.

There, lawyers with one of the nation’s largest civil rights organizations, the NAACP Legal Defense and Educational Fund, squared off with litigators hired by the Project on Fair Representation—a one-man conservative, nonprofit organization with an increasingly influential legal footprint, which includes a role as the driving force behind the Supreme Court’s June Voting Rights Act decision.

At issue is this question: Can a school like the University of Texas accomplish what the Supreme Court has, in the past, described as the “worthwhile” and legal goal of creating campus diversity without considering race in its admissions process?

It may sound wonky, or even boring. But affirmative action advocates and opponents alike agree that the idea really at stake here is whether the trinity of American secular dogma—hard work, equality and opportunity—is real.

“Universities open a pathway to leadership,” says Joshua Civin, counsel to the director of litigation at the NAACP LDF. He was one of several lawyers who argued the Fisher case in front of the 5th Circuit Court on Wednesday.

“What we are talking about is not proportional representation on campus,” Civin adds. “We are talking about creating a realistic environment for students. And in a state with a population as diverse as Texas, in a country with a population changing as rapidly as that of the United States, having that kind of experience really cannot be more important. Flagship universities like UT can’t operate in a vacuum if we want to maintain a healthy economy and a functioning democracy.”

Ed Blum, director of the Project on Fair Representation, could not be reached for comment late Wednesday. But even outside the nation’s courtrooms, affirmative action continues to rank among the country’s most fraught and frequently debated policies.

Late last week a video produced by a student at UCLA, highlighting the effects of California’s nearly 20-year-old experiment with race-neutral college admissions, went viral, garnering more than 300,000 views. The video—one part statistical review and one part spoken-word performance—claims that only 48 members of the university’s nearly 20,000-member freshman class are black men.