UT Austin's admissions system -- at issue in Fisher -- recognizes these disparities and tries to correct for them. UT admits 85 percent of its students through a plan that automatically admits the top 10 percent of students from all Texas high schools. If this approach creates racial diversity, it is only because of the persistent segregation in public schools. To diversify the approximately 15 percent of the class remaining, the admissions team tries to consider a wide range of other qualifications -- not only an applicant's essays, extracurricular activities, and awards, but also his or her work experience, family responsibilities, language ability, and, finally, socioeconomic status and race.
Abigail Fisher, the plaintiff, was not in the top 10 percent of her class when she applied to UT as a Texas high school student in 2008, so her application was weighed according to all of these criteria. She was denied admission and is now is challenging the acceptance of 49 named students of color that same year.
On the surface, Fisher vs. UT asks a simple question: Is it constitutional for a university to consider race when evaluating an applicant's personal background? But underneath this question is a deeper one: Can a student's racial background race really be separated from who he or she is as an applicant and a human being?
As part of its application process, UT Austin asks students to write about "an issue of importance to you ... [and] the significance of that issue to yourself, your family, your community, or your generation." The University of Michigan asks applicants to "describe an experience that illustrates what you would bring to the diversity in a college community or an encounter that demonstrated the importance of diversity to you." Almost all college applications include similar essay questions.
When faced with questions like these, students often must write about their race or ethnicity to respond adequately. In UT's court filings, an admissions officer provided exactly such an example. A white male applicant to UT Austin wrote how working at an after-school program in an underprivileged black neighborhood helped him get out of his "bubble." To understand the applicant's story, the officer had to consider his race.
Similarly, Osama Hamdy's essay for the University of Chicago Law School concerned the racial profiling and harassment he experienced as a Muslim after 9/11. "The stares and the comments were just the beginning. Eventually I received a death threat at school. I remember crying alone in my room, afraid to tell my parents in fear that they might not let me go to school anymore." He goes on to explain that these experiences "taught me to defeat the difficulties in life instead of allowing them to defeat me."
The difficulty of prohibiting any consideration of race becomes clear when one considers the intent of the equal protection clause. Nearly 60 years ago in Brown v. Board of Education, the Supreme Court ruled that government has a constitutional obligation to end racial disparities that create an unequal law and reality for people of color. The purpose of the equal protection clause was to create opportunities specifically for people of color because of America's historic subordination of these people. It was certainly not meant to ban programs that help achieve racial equality.