AUSTIN, Texas Last June the U.S. Supreme Court faced a question it has wrestled with repeatedly for more than a generation: When may universities consider a student's race in making admissions decisions?
The justices did not provide an answer. Instead they returned the case, Fisher v. University of Texas at Austin, to the lower court that had previously upheld a University of Texas affirmative action program. They instructed it to rule on whether the university had adequately considered other methods that did not use race, such as those more focused on family income, in its efforts to diversify the student body.
On Wednesday, just a mile south of the sprawling flagship campus here, the U.S. Court of Appeals for the 5th Circuit once more became ground zero for a crucial battle over race. And again it seemed that the opponents of affirmative action could lose at this level - potentially sending the deeply fraught issue back up to the Supreme Court.
Just as they did last year at the high court, two lawyers from powerful Washington firms squared off. Bert Rein, whose fee was largely covered by a conservative group, challenged the university's admissions policy. Greg Garre, hired by the public university, defended it.
"If you're going to use race as a tool," Rein said after he stepped to the podium, "then you have certain obligations that have to be met."
He said the university would have to offer more evidence that it tried race-neutral methods of diversifying its student body. Any kind of discrimination on the basis of race - even when minorities benefit - faces a high bar under the U.S. Constitution.
Garre said the university already had offered sufficient evidence. In fact, he said, it had demonstrated that percentages of minority freshmen had dropped during a period of several years when the admissions office stopped considering race. "African-Americans suffered considerably," Garre said.
The University of Texas now admits most of its freshmen through a "Top Ten Percent" program that automatically accepts high school seniors in roughly the top 10 percent of their class. The rest are evaluated on factors that include race, socio-economic status, hardships at home and disability. Of the current freshman class of 7,200 students, about 5 percent are black, 23 percent Hispanic and 43 percent white, university officials said.
THE CATALYST OF THE CASE
Behind Rein and his team sat a young white woman with long strawberry blonde hair in whose name the case was being fought. Six years ago Abigail Fisher filed a lawsuit claiming she had been denied admission in favor of lesser-qualified minorities.
Now 23 years old, she graduated from Louisiana State University last year and is working as a financial analyst in Austin.
She no longer stands to benefit directly from the case but says she wants to help others who would follow her.
Beside Fisher were her parents and the true catalyst of the case, Edward Blum, a conservative advocate opposed to affirmative action. Blum, a friend of Fisher's father, launched the case after looking for a situation that might win over a conservative Supreme Court, persuading her to sue and hiring Rein to represent her.
Among the 100 other spectators sat Reva Davis and three other leaders of the university's Black Student Alliance, attired in black, green-lettered BSA shirts. They were in reserved seats near the elevated bench.
During an hour of arguments, it appeared that the three- judge panel, which previously had ruled unanimously in favor of the university, might splinter. Judge Emilio Garza, an appointee of Republican President George H.W. Bush, appeared sympathetic to Rein's claim that the university cannot justify using race in its decisions.
Garza repeated a remark made by Chief Justice John Roberts at the Supreme Court last year that the university had failed to specify how many minorities provided sufficient diversity. In legal parlance, that is called "critical mass," and an overriding dilemma for the university has been how to define that concept without hard-and-fast numbers that could become unlawful quotas. Garre said that rather than putting a number on it, the university was seeking an atmosphere that ensures that minorities do not feel racially isolated.
Judge Patrick Higginbotham, an appointee of Republican President Ronald Reagan, implicitly defended the university. He pointed to the top 10 percent program as a race-neutral method of attracting more minorities, since it draws in students from urban high schools. He suggested the university should "get credit" for employing that program along with racial considerations.
The third judge, Carolyn Dineen King, appointed by President Jimmy Carter, a Democrat, offered little clue in her few questions as to whether she might reverse her prior vote for the policy.
A DECISION IN MONTHS
A decision is expected within several months. If a majority favors the University of Texas, it is likely Fisher's lawyers will appeal, and the dispute will be back at the U.S. Supreme Court in a year or two. It is also possible that the court would send the case back down yet another level, to a U.S. trial court, to collect more evidence from the university.
In its ruling last June, the Supreme Court said the 5th Circuit should not have relied so heavily on the university's assertion that it would have to consider applicants' race to some extent in order to achieve sufficient diversity . The justices did not specify what evidence lower-court judges must demand.
The ruling has been interpreted by supporters of affirmative action, including President Barack Obama's administration, as making no change in the status quo. Under Supreme Court rulings tracing back 35 years, race may be considered among many traits in admissions decisions.
Rein and other opponents of affirmative action say the high court's Fisher ruling put a new burden on universities. They say universities must clearly demonstrate, with data or other hard evidence, why alternative programs failed to achieve sufficient diversity. Underlying their argument is broad opposition to affirmative action and a belief that it treats whites unfairly and can stigmatize blacks and other minorities.
Few social policy issues have been as enduringly divisive as affirmative action. The phrase relates to President John Kennedy's 1961 order that government contractors take "affirmative action" to hire racial minorities.
The U.S. Supreme Court first took on the higher education dilemma in 1978, with the case of Regents of the University of California v. Bakke. The court said universities trying to enhance diversity could consider an applicant's race as one of several criteria but could not use quotas.
In 2003, the court upheld Bakke in a case from the University of Michigan, stressing that programs needed to be limited - in the court's words, "narrowly tailored" - and based on individualized consideration of applicants.
Six years later, a more conservative Supreme Court took up the Fisher case. Then, as now, both sides of the debate are closely watching to see if it ultimately becomes the case that reverses the trend of the last three decades allowing affirmative action. If the high court takes up the Fisher case again, its ruling could significantly affect the fate of affirmative action policies at colleges and universities nationwide.
NATIONAL STAKES UNDERSCORED
It is unusual for Supreme Court advocates to stick with a case when it returns to lower courts. The fact that Garre and Rein have stayed on underscores the national stakes involved.
One of about a dozen regular private practitioners at the Supreme Court, Garre was a U.S. solicitor general for the George W. Bush administration, representing the government before the justices. The university paid Garre's firm, Latham and Watkins, $1 million for the high court defense that ended last spring. The firm is now under contract for about $250,000 for the 5th Circuit round, university spokesman Gary Susswein said this week.
Rein, who worked for the Richard Nixon and Ronald Reagan administrations and was a founding partner of Wiley Rein, was enlisted by Blum, a longtime opponent of racial policies. Blum, who runs the Project on Fair Representation, of which he is the sole employee, is financed by a tax-exempt charitable group called Donors Trust. It raises money for conservative foundations.
Blum declined to give the specifics of Rein's fees, saying only that he had paid him "a few hundred thousand dollars" so far.
After the hearing, Fisher said she still hoped to change the University of Texas admissions policy. She said she now has two young nieces who might one day want to attend the school. "It would be really great if they had a new system," she said.
Outside the courthouse, black and Latino students held small, hand-lettered signs that said, "Diversity Matters," and "UT Needs Diversity."
On campus, admissions officials already were screening applications for next year. They expect a total 40,000 applications by the December 1 deadline.
Kedra Ishop, director of admissions, said in an earlier interview that the university had adhered to the same screening process throughout the years of Fisher's challenge. She said officials do not begin the annual process with numerical goals, but rather with the aim of ensuring students "feel represented and comfortable."
Of the drive for diversity, Ishop said: "That's the reason we're in court every year."