In 1997, the Texas Legislature enacted the "Top 10 Percent Rule," which requires that high school seniors in the top 10 percent of their class be automatically admitted to any state university. That law, which increased the number and percentage of Hispanics and African Americans at the University of Texas, is not being contested. The question is whether the university can go beyond the Top 10 Percent Rule to achieve more diversity.
The university believes it needs to do so because too many of its classes have insufficient minority students for "diverse interactions" in the classroom. In its College of Business Administration, for example, just 3.4 percent of the students are African American.
Lawyers for Abigail Fisher, who is white and did not graduate in the top 10 percent of her class, argue that she was unfairly measured against minority students who were given an edge based on their race. Fisher, who eventually enrolled in Louisiana State University, did indeed face a tough challenge getting into the University of Texas as a non-top-10-percent student. What the court is being asked is whether she and other nonminority students in that category were treated unfairly.
Three justices - Anthony Kennedy, Antonin Scalia, and Clarence Thomas - voted against the majority's decision in the 2003 case. And in Samuel Alito and Chief Justice John Roberts - who in another diversity case wrote, "The way to stop discriminating on the basis of race is to stop discriminating on the basis of race" - the court has two more justices who have shown they want further limits on race-conscious laws. I worry that these five conservative justices will try to achieve the result the earlier case denied.
There is no legal precedent that suggests the University of Texas cannot push for more diversity if it believes the Top 10 Percent Rule has fallen short. What is hard to know is whether the court will think it is a better judge of that than the university. Given the conservative justices' activism, it is easy to imagine them concluding that the racially neutral 10 percent plan is enough.
Fifty years after James Meredith's entry into Ole Miss, and 58 years after the Supreme Court's historic Brown v. Board of Education decision, those of us who want more diversity in our colleges and universities have to accept that the Supreme Court is not going to be our ally in the coming years. If we are really concerned about the number of minority students in our classrooms, we need to commit ourselves most of all to improving the inner-city public schools that so many minority children attend. Our task is not as dramatic as James Meredith's, but it is no less essential for our times.
Nicolaus Mills is a professor of American studies at Sarah Lawrence College and the author of "Debating Affirmative Action: Race, Gender, Ethnicity, and the Politics of Inclusion."