SCOTUS affirmative action hearing comes amid campus protests

Supporters say it proves diversity need, critics call it result of unprepared students

Student protests on campuses across the nation may affect justices' decisions in the upcoming U.S. Supreme Court case on affirmative action, Adam Liptak reports for the New York Times.


The court will hear Fisher v. University of Texas at Austin for the second time on December 9. The case challenges the institution's admissions policy that allows the school to use affirmative action to reach a "critical mass" of minority students to form a diverse student body.

But there is no number or ratio defining what "critical mass" means. Generally, schools say they have achieved it when minority students do not feel like they are token members of their race and do not feel uncomfortable expressing their views.

EAB Daily Briefing Primer: Fisher v. University of Texas at Austin

What protests may mean for the ruling

By some estimates, campus protests centered on racial tension have spread to more than 100 campuses nationwide since the University of Missouri's chancellor and system president resigned on November 9.

"African-American students are telling us in no uncertain terms why diversity on campus is important,” says Sherrilyn Ifill, president of the NAACP Legal Defense and Educational Fund, which filed a brief supporting the University of Texas (UT). "They are describing their own marginalization."

Several higher ed groups file briefs to Supreme Court supporting affirmative action

Supporters of affirmative action say that the protests themselves prove the importance and educational value of diversity.

"Differences of experience and perspective can sometimes make communication difficult and cause friction and misunderstanding," says Paul Smith, a lawyer for several Ivy League institutions. "And yet the process of working though those issues can be as valuable educationally as what occurs in the classroom."

But others—including some Republican presidential candidates—say the protests jeopardize free speech.

"If you think that the student protesters are insisting on a kind of political correctness and capitulation of authorities to their demands, you might think that this just shows that affirmative action does not promote intellectual diversity," says Michael Dorf, a Cornell University law professor.

Other critics, meanwhile, argue the unrest is a result of academically unprepared students earning admittance to schools due to race.

"Students who are recruited, because of their race, to colleges where the average entering credentials are significantly higher than their own will find themselves at severe academic disadvantage," said John C. Eastman, a Chapman University law professor who filed a brief against UT. "Basic human nature suggests that they will then try to blame others for their academic struggles, and when they look around and find a lot of similarly situated minority students struggling as well, the narrative of institutional racism would have great appeal" (Liptak, New York Times, 12/1).

Thoughts on the story? Tweet us at @eab_daily and let us know.

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