Affirmative Action

Sotomayor: Race affirmative action works, economic doesn’t

Supreme Court Justice Sonia Sotomayor defended her support of race-based affirmative action, saying she believes it works to improve diversity in higher education, where using geographic or economic status don’t.

Sotomayor, who wrote the dissent in an April ruling that allowed Michigan to ban affirmative action, said race-based affirmative action programs helped people like her and President Obama rise above difficult childhoods to the very top of their fields.

And unlike using race, she said, the statistics show economic or geographic considerations don’t work to improve diversity.

“It just doesn’t,” she told ABC’s George Stephanopoulos on This Week Sunday. “If you start from the proposition that advantage inures to a background that’s privileged — and it does.”

“Legacy admission is a wonderful thing, because it means even if you’re not as qualified as others you’re going to get that slight advantage.””But what does ‘qualifications’ mean in an academic setting?” she continued. “A place like Princeton… could fill their entire beginning freshman class with students who have scored perfectly on undergraduate metrics. They don’t do it because it would not make for a diverse class on the metrics that they think are important for success in life.”

Sotomayor said she agrees with Obama that his children should not receive “special consideration” for their race, adding that race shouldn’t be considered in a vacuum.

“But even privileged people will show you dramatic accomplishment that doesn’t go just to grades,” she said.

Source: United Press International
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Affirmative Action and the Supreme Court

Supreme Court Upholds Michigan’s Affirmative Action Ban

Justices Decide States Can End Racial Preferences Without Violating Constitution

WASHINGTON—The Supreme Court on Tuesday upheld Michigan’s decision to end affirmative action at its public universities in a 6-2 ruling, but the justices were divided in their reasoning, suggesting continued uncertainty over the broader issue of racial preferences.

The ruling leaves in place a 2006 Michigan ballot initiative where voters ended race-based admissions at state schools, and means racial preferences won’t soon return to the University of Michigan—or any other public university in states that have chosen to end the practice.

“Democracy does not presume that some subjects are either too divisive or too profound for public debate,” Justice Anthony Kennedy wrote in backing the law.

The court’s ruling didn’t alter the ability of universities in states without bans to consider race as one factor among others in admissions. Instead, the court chipped away at affirmative action by giving its blessing to one path for foes to challenge admissions policies: ballot initiatives. Opponents have also gone to courts and state legislatures to end affirmative-action practices in a decadeslong battle over university policies.

Eight states, including California, have ended affirmative action since 1996. Practices vary widely among institutions. The higher-education establishment generally favors the use of racial preferences to promote diversity in the student body. Many of the nation’s most selective universities—including the Ivy League, the U.S. military academies and flagship public institutions such as the University of Texas at Austin and the University of North Carolina at Chapel Hill—employ affirmative action.

Race-based admissions policies are at issue in a continuing lawsuit against the University of Texas at Austin. In that case, involving a white student who challenged admissions policies after being rejected, the Supreme Court ducked the chance to rule directly on affirmative action in June 2013, and returned the case to a lower court.

Earlier this month, Edward Blum, an activist who has underwritten the lawsuit against Texas, set up websites seeking potential plaintiffs to sue Harvard University, the University of North Carolina and the University of Wisconsin over affirmative-action policies he believes are unlawful.

Tuesday’s ruling saw both the court’s right and left wings splinter, suggesting the justices are far from consensus on when affirmative action may be allowed, an issue sure to return to the court in the coming years.

 The Supreme Court upheld a ban on affirmative action in Michigan, voting 6-2 that states may end racial preferences without violating the U.S. Constitution. Martha Jones, University of Michigan professor of history, law and African-American studies, offers analysis. Photo: Getty.

The court’s five conservatives produced three different opinions. Justice Stephen Breyer split from two liberals to side with Michigan for separate reasons. The fourth liberal justice, Elena Kagan, recused herself, presumably because she was involved in the case in her previous post as U.S. solicitor general.

The closest the court came to consensus was a plurality opinion by Justice Kennedy, joined by Chief Justice John Roberts and Justice Samuel Alito. Justice Kennedy tried to walk a moderate line. He acknowledged the U.S.’s painful history of racial exclusion, while concluding Michigan voters retained the prerogative to adopt a ballot initiative expressly prohibiting both discrimination and preferences.

“The electorate’s instruction to governmental entities not to embark upon the course of race-defined and race-based preferences was adopted, we must assume, because the voters deemed a preference system to be unwise on account of what voters may deem its latent potential to become itself a source of the very resentments and hostilities based on race that this nation seeks to put behind it,” Justice Kennedy wrote. “Voters might likewise consider, after debate and reflection, that programs designed to increase diversity—consistent with the Constitution—are a necessary part of progress to transcend the stigma of past racism.”

Seemingly trying to cool emotions, Justice Kennedy stressed at the outset “what this case is not about. It is not about the constitutionality, or the merits, of race-conscious admissions policies in higher education.”

Instead, he wrote, the issue was which level of government held the power to decide if affirmative action to promote diversity was an appropriate policy in public institutions.

equal treatment in college admissions, because it is fundamentally wrong to treat people differently based on the color of their skin,” Republican state Attorney General Bill Schuette said. “A majority of Michigan voters embraced the ideal of equal treatment in 2006, and today their decision was affirmed.”

Civil-rights advocates called it a setback. “We think it’s a terrible decision,” said George Washington, an attorney for the Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality by Any Means Necessary, a Detroit-based advocacy group that challenged the ballot initiative, Proposal 2. “It allows the voters of each state to decide what the rights of minorities should be and whether they should be admitted to the most selective universities.”

States Without Affirmative Action

Prior to Tuesday’s Supreme Court decision, eight states had ended affirmative action, or preferential treatment based on race, at public colleges:

  • California—in 1996
  • Washington—1998
  • Florida—1999
  • Michigan—2006
  • Nebraska—2008
  • Arizona—2010
  • New Hampshire—2011
  • Oklahoma—2012

Source: National Conference of State Legislatures

Statistics tell a mixed story about race since the 2006 initiative nixed race-conscious admissions policies. Black enrollment at the University of Michigan fell to 4.82% in 2013 from 6.12% in 2009, university numbers show. But Hispanic enrollment grew slightly to 4.97% from 4.47% during the same period.

The university has been a frequent battleground over affirmative action. In 2003, a narrowly divided Supreme Court upheld the practice at the university’s law school, but struck down a different point-based method it employed for undergraduate admissions, saying it made race too dominant a factor.

Three years later, Michigan voters approved Proposal 2, only to see it thrown out in 2012 by the Sixth U.S. Circuit Court of Appeals. The Cincinnati-based court cited Supreme Court precedents from 1969 and 1982 striking down voter initiatives that restructured the “political process” to disadvantage minorities, but Justice Kennedy said Michigan’s ballot initiative couldn’t be compared with the circumstances in those earlier cases.

Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, filed a 58-page dissent and summarized it from the bench, signaling strong disagreement with the majority.

Justice Sotomayor wrote that Michigan voters “changed the basic rules of the political process in that state in a manner that uniquely disadvantaged racial minorities.” In order to obtain admissions preferences, they now would have to amend the state Constitution, she wrote, while other groups—such as alumni children or athletes—could obtain admissions preferences more easily, such as by lobbying administrators.

She also mocked as “out of touch with reality” Chief Justice Roberts’s statement in a 2007 desegregation decision that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” She wrote, “race matters,” adding that “the way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.”

That brought a response from Chief Justice Roberts. “It is not ‘out of touch with reality’ to conclude that racial preferences may…do more harm than good.”

Source: The Wall Street Journal

Supreme Court and Affirmative-Action Ban

Supreme Court Weighs Michigan Affirmative-Action Ban

Conservatives on the U.S. Supreme Court appeared skeptical on Tuesday that Michigan’s voter-enacted prohibition on affirmative action in higher education violates the 14th Amendment’s equal-protection principles.

“It’s not a racial classification; it’s a prohibition of racial classifications,” Justice Antonin Scalia said of the 2006 ballot measure known as Proposal 2 during arguments in Schuette v. Coalition to Defend Affirmative Action (Case No. 12-682).

The measure also barred race preferences in K-12 public schools and other areas of state government, but the case before the high court concerns the measure’s prohibition of race preferences in college admissions. (Still, the court’s decision could have wide implications, as I reported here.)

Chief Justice John G. Roberts Jr., another of the court’s conservatives on race issues, wondered why the state’s voters couldn’t conclude that “race is a lightning rod” and that they would like to try race-neutral alternatives in admissions without running afoul of the equal-protection clause.

The U.S. Court of Appeals for the 6th Circuit, in Cincinnati, ruled last year that the ballot measure violated the “political restructuring” doctrine, meaning it made it more difficult for racial minorities to reverse the measure. That was a significant change in the ordinary political process and a racial classification that did not survive strict scrutiny, or the highest level justification needed to uphold a government policy, the court ruled.

To read more: http://blogs.edweek.org/edweek/school_law/2013/10/supreme_court_weighs_michigan_.html?cmp=ENL-EU-NEWS2

 

Supreme Court and Affirmative Action Ruling

In a surprise outcome, the U.S. Supreme Court ruled 7-1 on Monday that a lower court failed to properly apply the proper legal standard to the race-conscious admissions program at the University of Texas at Austin.

The court threw out a ruling by the U.S. Court of Appeals for the 5th Circuit, in New Orleans, that upheld the flagship UT campus’s consideration of race in undergraduate admissions.

Justice Anthony M. Kennedy said the lower court had failed to hold the university to the demanding burden of “strict scrutiny” as articulated in the Supreme Court’s landmark decisions on affirmative action in education.

The 5th Circuit presumed that the university had acted it good faith and thus showed deference to the school, a standard that was at odds with the requirement under the 2003 case of Grutter v. Bollinger that “all racial classifcations imposed by government must be analyzed by a reviewing court under strict scrutiny.”

“Strict scrutiny does not permit a court to accept a school’s assertion that its admissions process uses race in a permissible way without a court giving close analysis to the evidence of how the process works in practice,” Justice Kennedy wrote for the court in Fisher v. University of Texas at Austin (Case No. 11-345).

Under strict scrutiny, a government racial classification must meet a compelling governmental interest and be narrowly tailored to achieve that interest.

His opinion was joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas, Stephen G. Breyer, Samuel A. Alito Jr., and Sonia Sotomayor. Justice Elena Kagan did not participate in the case because she had presumably worked on it while she was U.S. solicitor general.

Justice Ruth Bader Ginsburg read part of her lone dissent from the bench.

“In my view, the courts below adhered to this court’s pathmarking decisions and there is no need for a second look,” she said. “Like so many educational institutions across the nation, the University of Texas modeled its admissions plan after the law-school policy approved in Grutter v. Bollinger and the Harvard plan referenced as exemplary in Justice [Lewis F.] Powell’s opinion in Regents of the University of California v. Bakke.”

Justice Kennedy cited language from the Grutter opinion by then-Justice Sandra Day O’Connor, who was in the courtroom on Monday.

“Strict scrutiny must not be ‘strict in theory, but fatal in fact,'” Kennedy said, in reference to language O’Connor used in Grutter. “But the opposite is also true. Strict scrutiny must not be strict in theory but feeble in fact.”

“In order for judicial review to be meaningful,” Kennedy continued, “a university must make a showing that its plan is narrowly tailored to achieve the only interest that this court has approved in this context: the benefits of a student body diversity that encompasses a broad array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.”

The case involves Abigail Fisher, a white applicant from Sugar Land, Texas, who was denied admission to the University of Texas at Austin in 2008 under the university’s “holistic review” program.

In a statement after the court’s decision on Monday, Fisher said: “I am grateful to the justices for moving the nation closer to the day when a student’s race isn’t used at all in college admissions.”

The university takes race into account for the roughly one-quarter of places in UT-Austin’s entering freshman class not filled by the “Top Ten” plan—the Texas law that guarantees admission to high school students who finish in the top 10 percent of their graduating classes.

Lawyers for Ms. Fisher argued that except for the consideration of race, she would have been admitted. They called for the race-conscious Texas program to be struck down under the 14th Amendment’s equal-protection clause because it fails the requirement for a narrowly tailored race-conscious program set forth in the Supreme Court’s 2003 decision in Grutter.

That 5-4 decision involved the University of Michigan law school, and the majority opinion by then-Justice Sandra Day O’Connor expressed a desire for all use of affirmative action in education to end within 25 years.

In a statement by the Project on Fair Representation, the group that backed Fisher’s suit, project founder Edward Blum said, “The Supreme Court has established exceptionally high hurdles for the Univ. of Texas and other universities and colleges to overcome if they intend to continue using race preferences in their admissions policies. It is unlikely that most institutions will be able to overcome these hurdles. This opinion will compel the Fifth Circuit to strike down UT’s current use of race and ethnicity.”

The University of Texas argued that its selectivity has been hindered by the rigidity of the Top Ten plan, and that its use of race is designed to bolster racial diversity in a broad sense, including within minority groups, such as by attracting better-credentialed black and Hispanic students than under the automatic plan.

Black and Hispanic students admitted through the holistic program, such as “the African-American or Hispanic child of successful professionals in Dallas,” have “great potential for serving as a ‘bridge’ in promoting cross-racial understanding, as well as in breaking down racial stereotypes,” the university said in its main Supreme Court brief.

Reacting to the Supreme Court’s decision on Monday, UT-Austin President Bill Powers said he was encouraged by the ruling and that the university would continue to defend its policy.

“We remain committed to assembling a student body at the University of Texas at Austin that provides the educational benefits of diversity on campus while respecting the rights of all students and acting within the constitutional framework established by the court,” Powers said in a prepared statement.

Many K-12 groups, including the National School Boards Association and Teach For America, along with the higher education community in general, took positions in support of the university.

A joint brief by the College Board, the NSBA, and several other K-12 groups argued that racial diversity “has emerged as central to our nation’s overarching goals associated with educational excellence.”

Francisco Negron, the general counsel of the NSBA, said Monday that he and other K-12 advocates we’re heartened by the decision.

“I think there is some good law here,” said Negron. “Justice Kennedy is coming right out and saying Grutter is still good law and that courts have to be deferential about schools using diversity.”

He said Kennedy’s language on narrow tailoring was in line with his concurrence in the 2007 decision in Parents Involved in Community Schools v. Seattle School District, when the high court sharply curtailed the permissible uses of race in K-12 education.

“He’s saying race neutrality should be part of the strict scrutiny analyis,” which is what Kennedy stressed in the Seattle concurrence, Negron said.

A much smaller number of organizations, such as the Asian American Legal Foundation and the Pacific Legal Foundation, filed briefs backing Ms. Fisher.

Source: Education Week /Mark Walsh 

Supreme Court to Tackle Multiracial Child Adoption

    High court to tackle Native American adoption dispute

    By Bill Mears, CNN Supreme Court Producer
    Sat January 5, 2013

    Adoption case reaches Supreme Court

    STORY HIGHLIGHTS
    • NEW: S.C. couple says it is happy that the high court will hear their appeal
    • Cherokee Indian man won custody of his biological daughter
    • S.C. couple’s appeal will be heard by high court
    • A federal law meant to protect Indian family breakup is key to the case

    Washington (CNN) — A custody battle involving the “best interests” of a 3-year-old Cherokee girl will be taken up by the U.S. Supreme Court, an issue spanning the rights of adoptive parents and the desire to preserve Native American families within tribes.

    The justices announced they will hear an appeal from Matt and Melanie Capobianco, who legally adopted little Veronica in 2009, shortly after the birth mother agreed to give up the child. Oral arguments in the case will likely be heard in April with a ruling by late June.
    The South Carolina Supreme Court in July ruled for the biological father, who had sought custody shortly after the child’s birth. He is a registered member of the Cherokee Nation and is raising the child in Oklahoma.
    Dusten Brown had earlier signed a legal document agreeing to put the girl up for adoption, but his attorneys say the father did not understand the extent of the waiver, and that the birth mother misrepresented the child’s American Indian heritage to social service workers when the adoption was finalized.

    At issue is whether Brown, as the onetime non-custodial father, can gain parental custody, after the non-Indian mother initiated an adoption outside the tribe.
    A special congressional law governs such interstate adoptions, since the current 556 federally recognized tribes all fall under Interior Department oversight, giving those tribes certain unique benefits and rights.
    Lawyers for the Capobiancos say federal law does not define an unwed biological father as a “parent.”
    The adoptive couple was excited that the high court will hear their case.
    “We weren’t sure what to expect,” Melanie Capobianco told CNN’s Randi Kaye. “It was a low chance and we just feel really extremely happy that they decided to hear it.”
    Her husband, Matt, added, “It restored some hope and a little faith in the judicial system.”
    The federal law in question is the Indian Child Welfare Act (ICWA) of 1978, a response to decades of often abusive social service practices that resulted in the separation of large numbers of native youngsters from their families, in many cases to non-Indian homes.
    The legislation was designed to “promote the stability and security of Indian tribes and Indian families by the establishment of minimum federal standards to prevent the arbitrary removal of Indian children from their families and tribes and to ensure that measures which prevent the breakup of Indian families are followed in child custody proceedings.”
    Brown’s relationship within the “federally recognized government” of the Cherokee Nation means Veronica — named in court papers as “Baby Girl” — is a member of the tribe and subject to their jurisdiction.
    “It’s not anyone’s intent ever to rip a child away from a loving home,” said Todd Hembree, the Tahlequah, Oklahoma-based tribe’s attorney general. “But we want to make sure those loving homes have the opportunity to be Indian homes first.”
    Still, the Capobiancos argue that the little girl’s real home is with them.
    “Veronica was always a part of our home from birth and we just felt like she was in a happy place and that those kinds of needs could have been met through us,” Melanie Capobianco said. “I just don’t think that was what Congress was thinking about when that act was passed.”
    As with many custody fights, there is wide factual disagreement over the circumstances of both the couple’s breakup and subsequent adoption of the child. Opposing sides even disagree on what legal issues the high court should address.
    The Capobiancos think the issue should be about whether the ICWA law can improperly block adoption proceedings voluntarily initiated by a non-Indian mother who had sole custody of her child, due to what the adoptive parents say is the Indian father’s failure to establish a legal parent-child relationship under state law.

    But Brown argues he successfully established paternity under state law, and qualifies as a “parent” under the ICWA, thereby giving him proper control and custody of his daughter.
    He said in legal papers that the child was conceived when the couple was engaged, and “excited” he would be a father. But Brown claims the biological mother broke off the now-strained relationship by text message. He agreed to relinquish his parental rights in exchange for not paying child support, but said the mother never indicated she intended unilaterally to give the child up for adoption.
    And Brown claims the biological mother tried to “conceal” his Indian heritage during the adoption process with the Capobiancos, who live in Charleston, South Carolina.
    Establishing such heritage would normally make it very difficult for the Cherokee Nation and state social services to agree to any non-Indian adoption and removal from the state.
    By this time, Brown was deployed to Iraq on a one-year deployment in the U.S. Army, making it hard to press his custody claims. Veronica lived with the Capobiancos for two years before the high court in South Carolina ruled for the father. Brown took his daughter back to Bartlesville, Oklahoma, on New Year’s Eve 2011.
    The state’s top court that ruled in his favor said Brown had “a deeply embedded relationship” with his American Indian heritage, in which Veronica will be raised.
    But the Capobiancos point to another part of the state court’s conclusion: that despite a ruling against them, they were “ideal parents who have exhibited the ability to provide a loving family environment.” That court said its hands were tied, and that federal law trumped state law.
    “Courts in seven states have held that ICWA does not bar courts from terminating the parental rights of a non-custodial father under state law when the father abandoned his child to the sole custody of a non-Indian mother,” said Lisa Blatt, attorney for the couple.
    She says the father’s initial agreement to give up his parental rights meant he forfeited any subsequent efforts to establish custody, when the child was already in a happy, stable home environment.
    The Capobiancos argue Brown had refused to offer any financial assistance to the biological mother until they were married and “wanted nothing to do” with the pregnancy.
    As a single mother with two other young children, the biological mother felt she had no choice but to give her daughter up for adoption, said a legal brief filed by her lawyers. They say she complied with the adoption laws in both states and with the tribe.
    The couple also says they long wanted to be parents and had seven unsuccessful attempts at in vitro fertilization.
    She is a child developmental psychologist and he is an automotive body technician. They were in the room when Veronica was born, and had an “open” adoption, meaning the biological mother could and did maintain a relationship with Veronica.
    The case is Adoptive Couple v. Baby Girl, a Minor Child Under the Age of Fourteen Years (12-399). 
    Source: CNN

    Justices Weigh Race in Admissions

    AP_SCOTUSFisher400.jpg

     Justices Weigh Race in Admissions

    Conservatives on the U.S. Supreme Court came out aggressively today against the race-conscious admissions plan at the University of Texas at Austin, while liberals raised jurisdictional issues and defended affirmative action.

    Somewhere in the middle was Justice Anthony M. Kennedy, who asked several questions that appeared skeptical of the plan.

    Kennedy seemed to be agreeing with Bert W. Rein, the Washington lawyer representing the rejected white applicant who is challenging the Texas plan, when he said, “Are you saying that you shouldn’t impose this hurt, or this injury, generally, for so little benefit?”

    Later, he pressed Gregory G. Garre, the lawyer defending the university, about whether a stated desire to admit racial minorities of diverse socioeconomic levels meant that race was the central factor.

    “What you’re saying is that what counts is race above all,” Kennedy said to Garre during the arguments in Fisher v. University of Texas at Austin (Case No. 11-345). “You want underprivileged of a certain race and privileged of a certain race. So that’s race.”
    The court’s most conservative members of the court were even more direct.

    “What is the critical mass of African-Americans and Hispanics that you are working toward?”
    Chief Justice John G. Roberts Jr. skeptically asked Garre, who said the university had no fixed goals for its “holistic review” plan, which sometimes considers race for spots in the freshman class not filled by the state’s Top Ten Percent plan. That plan guarantees admission to students who finish at the top of their high school classes, and fills 75 percent of the entering class.
    Justice Samuel A. Alito Jr. criticized the university’s desire to admit African-American students from suburban schools who missed the Ten Percent Plan cutoff.

    “I though the whole purpose of affirmative action was to help students who come from underprivileged backgrounds,” Alito said. “But you make a very different argument that I don’t think I’ve ever seen before.”

    Alito questioned why Texas seems to want to give a “leg up” to African-American and Hispanic applicants of “privileged backgrounds,” against “let’s say, an Asian or a white applicant whose parents are absolutely average in terms of education and income.”

    Garre said race-neutral alternatives like the Top Ten Percent plan “may get you diversity that looks okay on paper, but it doesn’t guarantee you diversity that produces educational benefits on campus.”

    U.S. Solicitor General Donald B. Verrilli Jr., representing President Barack Obama’s administration, also defended the Texas plan and the continued use of affirmative action by colleges nationwide.

    “I think it is important, your honors, not just to the government, but to the country, that our universities have the flexibility to shape their environments and their educational experience to make a reality of the principle … that our strength comes from people of different races, different creeds, different cultures, uniting in a commitment to freedom, and to more a perfect union.”

    The court’s participating liberal members—Justice Elena Kagan is recused—suggested the Texas plan met the requirements of the court’s 2003 decision in Grutter v. Bollinger, which upheld the limited use of race in an individualized admissions process at the University of Michigan Law School.

    “Are you asking us to overrule Grutter?” Justice Stephen G. Breyer asked Rein, as he referenced that decision’s suggestion that affirmative action in college admissions would be unnecessary within 25 years of 2003. “I know that time flies, but only nine of those years have passed.”

    Rein said Abigail Fisher, the white student who was denied admission under the Texas plan in 2008, was not arguing for Grutter to be overruled. Rather, the Texas plan did not meet that decision’s test for a narrowly tailored use of race only when race-neutral alternatives had been tried.

    “Race should have been a last resort,” Rein said. “It was a first resort.”

    Justice Ruth Bader Ginsburg said the Texas plan was “certainly no more aggressive” in its use of race “than the one in Grutter. It’s more, in fact, more modest.”

    Because a lower court upheld the Texas plan, the court’s four conservatives would have to attract at least one more vote, most likely Kennedy’s, to strike down the plan. If Kennedy were to join with Ginsburg, Breyer, and Sonia Sotomayor, a 4-4 tie would uphold the lower court with no national precedent.

    Justices Ginsburg and Sotomayor raised concerns about whether Fisher had proper legal standing and related jurisdictional issues. Because she is no longer seeking admission to UT-Austin, Fisher is now seeking a return of her $100 admissions fee, which her lawyer said was enough to keep her case alive. The jurisdictional issues were raised when Fisher appealed to the high court, so they came as no surprise to the justices. And conservative justices such as Antonin Scalia suggested that there were no procedural bars to the court deciding the merits of the case.

    “She had to pay and admissions for for a process in which she was not treated fairly,” he said.
    Present at Wednesday’s arguments were Fisher, a soft-spoken 22-year-old who just graduated from Louisiana State University, as well as William Powers, the president of the UT-Austin campus.

    About 15 minutes into the argument, retired Justice Sandra Day O’Connor arrived to take a prominent seat in the court’s VIP section. She listened intently as the justices debated the fate of the 2003 Grutter decision, of which she was the author.

    Photo: Abigail Fisher, who sued the University of Texas, walks outside the Supreme Court in Washington on Wednesday. The Supreme Court is taking up a challenge to a University of Texas program that considers race in some college admissions. The case could produce new limits on affirmative action at universities, or roll it back entirely. 
    Source: Susan Walsh/AP