With the recent Supreme Court decision to hear the case of Fisher v. University of Texas, the debate about the constitutionality of affirmative action programs and the necessity of ensuring a diverse student body in educational communities has resurfaced.

A white student, Abigail Fisher, is suing the University of Texas for purportedly denying her admission on the grounds that she is Caucasian. The University of Texas denies these claims and, furthermore, argues that affirmative did not preclude her from receiving an undergraduate education since Fisher will graduate from Louisiana State University this spring. Fisher’s lawyers have been joined by affirmative action critics and conservative advocacy groups, arguing that colleges have gone beyond the limitations previously set by the Supreme Court.

These limitations were most recently set in the 2003 parallel cases of Grutter v. Bollinger and Gratz v. Bollinger, involving admissions policies at University of Michigan’s law school and undergraduate program, respectively. The decision, delivered by Justice Sandra Day O’Connor, stated that student body diversity is a compelling interest and allowed public colleges and universities to take race into account in admissions decisions if the program doing so was “narrowly tailored.” Justice O’Connor also issued a dictum that “racial preferences” would presumably not always be necessary and may no longer be in college admissions in 25 years, in 2028.

Oberlin President Marvin Krislov, who started as vice president of the University of Michigan in 1998 and served as its general counsel during the 2003 Supreme Court proceedings, says that Justice O’Connor’s prediction was more of an aspiration, and he does not think that the time has come early where racial preferences have ceased to be necessary.

“We’re in 2012, clearly 25 years hasn’t passed, and … if you look at the data, I don’t know how many people would argue that either residential segregation or the pool [of qualified minority student applicants] has changed dramatically,” said Krislov.

According to Krislov, these are two of the primary factors that render affirmative action programs necessary. Krislov believes that “when one has an educational environment that includes people of diverse racial and ethnic background, the educational experience is so much richer for everyone,” and sees this as especially important at the college level because many students attend racially homogenous primary and secondary schools due to residential segregation. He further explains how affirmative action is necessary because the pool of qualified minority student applicants is so small that they need to be given some preference in order to be fairly represented.

“One of the sad facts of American education right now is that it’s a relatively small population of students of color who are able to compete for some of these schools,” said Krislov. “What we always said when I was at Michigan was that the take away message should be that we should, as a nation, commit ourselves to really trying to educate as broad a segment of our population as we can.”

Peter Schuck, Simeon E. Baldwin professor emeritus of law at Yale University and author of Diversity in America: Keeping Government at a Safe Distance, argues that taking the steps to better prepare minority students so that they are more able to compete is significantly more important and effective than affirmative action programs.

“I’m not sure what equal opportunity means in our complex society, but affirmative action on college campuses has almost nothing to do with it while better preparation of minority student has almost everything to do with it,” said Shuck in an e-mail interview with the Review. “That’s infinitely harder than affirmative action, which is a mostly bureaucratic, mathematical process, yet it is the only enduring solution.”

Schuck argues that it is the people, rather than the government’s, responsibility to ensure racial diversity. He also said that “most Americans praise diversity without thinking much about what it means.” This idea is further developed in his book, in which he explores how “diversity” in America today seems to focus merely on racial and ethnic diversity rather than political, religious and other strands of diverse viewpoints.

Race and ethnicity have always been the defining components of the diversity purportedly achieved through affirmative action programs. The constitutionality of these programs was first determined in 1978. Regents of the University of California v. Bakke was the first Supreme Court case that set a precedent for colleges and universities’ affirmative action plans. Allan Bakke claimed that he was denied admission to the UC Davis Medical School because he was white and that less qualified minority students were taking his place. The UC Davis Medical School’s program of setting aside 16 of 100 seats for African-American students was declared unconstitutional, but the Supreme Court decided that race was permitted to be one of the factors considered in the admissions process as long as specific quotas were not used.

This decision was questioned again in the 2003 Grutter and Gratz cases and now discourse is once again opening up about the constitutionality and necessity of affirmative action programs.

“What this new case calls into question, or could call into question, is whether or not the Grutter formulation is still a valid way of considering race and ethnicity in student body admissions,” said Krislov. “It also may go to the deeper questions; it’s really hard to know because the court takes these cases, there’s a question presented, but then they can define it more narrowly and more broadly. But obviously in the higher education community, there is a lot of concern about what will happen. Essentially since 1978 there’s been a pretty consistent understanding of what can work, with the amendment in 2003 just clarifying, but for many colleges and universities there’s been consistency.”

One of the issues complicating this case is the use of the ten percent plan in the University of Texas’s admissions process. In Texas, students in the top 10 percent of high schools are automatically admitted to the public university system. This has a minor role in maintaining diversity because the high schools tend to be racially homogeneous. However, race is still considered as one of many factors in the competitive process for the spots that are not occupied by students graduating in the top 10 percent. Fisher, who was not in the top 10 percent of her high school, argues that allowing race to be one of the factors in admissions decisions coupled with the ten percent plan is why she was not admitted to the university.

Krislov says that he has indirectly talked to members of the University of Texas’s legal counsel and expects that many more conversations have taken place between other members of the University of Michigan’s legal counsel of 2003 and the lawyers currently defending affirmative action policies. He says that two of the most effective strategies of the University of Michigan’s defense that may prove to be applicable in the current case were, one, gathering and presenting a significant body of social science research proving that student body diversity is a compelling interest in education and, two, the amicus strategy, the area of the defense Krislov feels he most contributed to.

Amicus briefs are independent, out-of-court statements that are submitted by “friends of the court,” sometimes at the request of counsel. A record-setting 107 briefs were filed in the 2003 University of Michigan cases. Krislov said that while several of these were from different people within the higher education system, a lot of emphasis was also put on “having authorities from outside higher education saying it’s important to us to have graduates who have studies in a diverse context and have multi-cultural competency and the ability to work in teams and interact with people from different backgrounds.” This was accomplished by having briefs sent in by different corporations, but the “blockbuster brief,” according to Krislov, was that sent in by the military.

The military brief focused on the tension that existed in the Vietnam War because of the divide of the primarily white officers and primarily minority, mostly black, enlisted men, arguing that this was in fact a huge national security issue. Krislov said that this brief coupled with the fact that military academies also have affirmative action programs proved to be very powerful.

“It was very challenging for the government’s representative, who was not supportive of our program, … to stand up and say these programs aren’t necessary when there was evidence through this amicus that I think all but one of the military academies, the Navy, the Air Force and the Army, all had programs that were very similar to Michigan … Those were very, I thought, powerful facts or arguments to the court and make it clear I think that there would be repercussions that would not just be within higher education but would span to the corporate world, the political world, the military world and so forth,” said Krislov.

The University of Texas has also already employed the amicus strategy, on a much smaller scale thus far, as the Obama administration submitted an amicus brief on its behalf at the Fifth Circuit Court, where the case was last heard prior to its appeal to the Supreme Court. Krislov expects the Obama administration to participate at the Supreme Court level as well.

While the amicus brief may prove to be helpful, supporters of affirmative action are worried because Justice Elena Kagan, one of the few standing liberal judges in the Court, will not be participating in its decision. The judge recused herself from hearing the Fisher case because she acted as solicitor general in the Obama administration’s brief and thus has a conflict of interest. The make-up of today’s Supreme Court Justices has shifted dramatically in ideology since the 1978 and 2003 decisions. Four of the nine have proven to be consistently conservative on race issues, including Chief Justice John G. Roberts. In a 2007 ruling with regard to the desegregation plans of two school districts, Roberts stated that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” While Schuck thinks that Fisher lacks standing, he believes that the absence of Kagan will cause her to win 5—3.

Krislov stressed that the decision could have narrow implications, specific only to University of Texas because of its ten percent plan, or the court could define its decision more broadly, making it applicable to the higher education system more generally.

Dean of Admissions Debra Chermonte did not comment on the extent to which race is considered as a factor in the admissions process at Oberlin but stresses that Oberlin has never had a quota in place or used any kind of point system. She described the admissions process as “individualized and flexible” with the final decision being “a holistic one made by a committee, not a calculator or rating system.”

Krislov echoed this point and said that academic preparation is the biggest factor in admissions decisions while other factors — “that can include every sort of talent, where people come from, experiences they might have, racial and ethnic diversity, country of origin … athletic and so forth—” are considered as well.

“I think Oberlin has a very diverse community, but there are always ways in which we can improve upon that,” said Krislov.