The U.S. Supreme Court will soon hear arguments in Fisher v. University of Texas at Austin, a case challenging the sliver of consideration the university gives to race and ethnicity when deciding whom to admit. It is already being billed as "the case that killed affirmative action."
That may prove true, as the make-up of the Supreme Court has changed considerably since the last time it looked at this heated issue, in 2003. Justice Sandra Day O'Connor, now retired, wrote the majority 5-4 ruling in Grutter v. Bollinger, upholding the University of Michigan Law School's policy of considering race in conjunction with other factors for admissions.
Justice O'Connor famously opined that "25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today."
She was 16 years off in that prediction. The court may simply forbid race as a consideration for both state universities and private ones that accept federal funds.
Texas automatically accepts the top 10 percent of each of its high schools' graduating classes. Given the state's many high schools that are de facto segregated by race, this guarantees a certain measure of diversity. Applicants not in the top 10 percent are selected based on other factors, one of which is race (but only in conjunction with other factors, following Grutter).
Abigail Fisher didn't make the 10 percent cut. Nor was she admitted based on other criteria. She sued, arguing she was denied admission because of her race.
By pursuing her case, Ms. Fisher and her lawyers are in effect alleging that she was more deserving than at least one nonwhite student admitted to the university. Indeed, the subtext of the backlash against affirmative action and "diversity" is that the white student is always more deserving.
But what do we mean by "deserving"?
Colleges often weigh race-neutral factors such as socioeconomic status, whether a student is the first in their family to attend college, or whether the family moved often during the student's formative years. Low-income white students from rural areas often benefit equally from such considerations.
How should an admissions committee weigh the academic potential of a child who took tough college-prep coursework and earned a 3.5 GPA against the student who worked a part-time job throughout high school, managed a 3.0 GPA in semi-rigorous school work, did community service and also lettered in one sport?
Who "deserves" the slot in the freshman class more? Who might be the more diligent student? Who will add to the experiences of other students by their unique background?
America's public colleges and universities, after all, are simply reflections of the quality of the nation's school districts. Hispanic, black and Native American students statistically fare worse in elementary and secondary schools, and are often racially isolated in low-income areas. No Child Left Behind has made that case eminently clear, with endless data on standardized test performance.
Those same minority students also make up 39 percent of the current K-12 population. They are a large proportion of the future workforce, and the pressing problem we face is extending educational opportunities to them so they can be productive and prosperous.
Affirmative action was meant to be a way to right old wrongs. "Diversity" is a more recent rationale.
An interesting footnote is that the man credited with coining the slogan "A mind is a terrible thing to waste" is also known as the father of affirmative action. Arthur Fletcher, an African-American, was a Republican who served under Presidents Richard Nixon, Gerald Ford, Ronald Reagan and George H.W. Bush. He decried the divisive attitudes that came to surround affirmative action.
Mr. Fletcher simply wanted to address the inequities that resulted from generations of legalized segregation and accepted discrimination. He helped fund the famous Brown v. Board of Education desegregation case. Segregation ended, but the inequities persist.
Mr. Fletcher died in 2005, distressed that what he considered his legacy -- educational opportunity for all -- was in deep disarray. In 2003, he told me, "If they can keep us out of undergraduate and graduate schools, then they have robbed us of the one thing we need to make the system work for us, the opportunity to get an equal and advanced education."
As the court takes up the Texas case, those concerns are as alive as ever.