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.

Campus officials haven’t disputed the video’s statistical claims but have said that the reasons for the problem are complex, and difficult to correct, without considering race in admissions decisions.

After voters approved the affirmative action ban at California’s public universities, combined black student enrollment at UCLA and the University of California, Berkeley—the state’s most prestigious public schools—fell from about 10 percent in the late 1990s to about 3 percent today, according to the most recent detailed enrollment data available.


Indeed, California is just one of several states that have banned affirmative action in college admissions decisions. Florida, Washington state and Michigan have also eliminated affirmative action, producing similar changes in enrollment, the New York Times reported earlier this year.

In Texas, the state’s flagship university culls 90 percent of its freshman class from high schools around the state through a race-neutral practice. Students with GPAs that rank them in the top 10 percent of their high school class are automatically offered a slot in UT’s freshman class. The remaining 10 percent of slots are filled through an application process that, among many other factors, does consider the applicant’s race or ethnicity or challenging socioeconomic circumstances that the student has overcome.

With this formula in place, black students still make up just under 6 percent of the school’s undergraduate population. Even so, the Project on Fair Representation has claimed that race-based affirmative action programs are, for white Americans, effectively no different from what Jim Crow policies once were to black Americans in the South.


And those arguments’ claims aren’t exactly part of the intellectual fringe, says Tim Wise, the author of Dear White America: Letter to a New Minority. This summer, he said, when Americans were still awaiting a ruling in the Fisher case, it touched off more debate about the harm suffered by white Americans in service to the cause of campus diversity than it did substantive examinations of core measures of equality. “It seemed like an awful lot of white liberals, conservatives and ambivalent people of color were just outright and publicly hopeful that the end of affirmative action was in sight,” Wise says.

Lawyers representing the plaintiff, Abigail Fisher, a white woman who applied to the University of Texas but did not get in, say the school devalued her application because it operates an affirmative action program with even a small racial component. Fisher—who didn’t graduate in the top 10 percent of her high school class—and her lawyers say the university’s policy violates the Equal Protection Clause of the Constitution’s 14th Amendment.

The 5th Circuit could rule on the Fisher case anytime. And when it does, any appeal could send the case back to the U.S. Supreme Court.


Janell Ross is a reporter in New York who covers political and economic issues. She is working on a book about race, economic inequality and the recession, due to be published by Beacon Press next year. Follow her on Twitter.