Will the Supreme Court Add to Campus Turmoil?

WASHINGTON -- Watching the racial ferment on campuses nationwide, and listening to the Supreme Court consider the charged topic of affirmative action, exposes the gulf -- the chasm, really -- between the difficult reality of race relations on campus and the out-of-touch, aggrieved perspective of the conservative justices.

Like me, you may not be a fan of the current wave of college protests. Students have been outrageously uncivil; they have overreacted to perceived slights; they have discounted the importance of the open debate that is central to the academic enterprise.

At the same time, underlying this bad behavior is a sincere sense of hurt and alienation. Minority students too often feel like intruders on majority white campuses, unwelcome and disrespected. They have too few student peers and even fewer faculty role models.

Into this combustible environment strolls the Supreme Court, to weigh making matters worse. Last Wednesday, the justices heard oral argument in a case that challenges the affirmative-action program at the University of Texas -- and could end up tying the hands of colleges nationwide.

The university, segregated by law until 1950, has been grappling with this issue for decades. After an earlier affirmative action program was invalidated in 1996, African-American enrollment plummeted, from 309 students in 1995 to 190 in 1997, out of a freshman class of 7,085.

In response, the Texas Legislature adopted a program to grant automatic admission to those in the top 10 percent of their high school class, a nominally race-blind approach that ironically relies for its effectiveness on the state's continuing pattern of residential segregation, and consequent clusters of overwhelmingly minority high schools. Even so, the program's impact was debatable; just 3.4 percent of the 2002 freshman class was African-American. (The numbers for Hispanics are healthier, reflecting the state's changing population.)

As a result, after a 2003 Supreme Court decision narrowly upholding racial preferences, Texas added a "holistic review" program, eventually endorsed by the Legislature and expanded to include 25 percent of the entering class, that took race into account as one factor among many in determining admission. Enrollment of African-American students doubled between 2002 and 2008.

Abigail Fisher, a white woman who did not qualify for admission under the top 10 percent program, sued, claiming that the race-conscious admissions violated her rights. Fisher has since graduated from Louisiana State University and is working as a financial analyst, which raises the legal question of her continued standing, and the practical issue: How were you so injured by this inherently subjective process?

Wednesday marked Fisher's second trip to the high court; an earlier round fizzled. The fault lines are predictable: Three liberal justices (Justice Elena Kagan is recused because she was involved in the case as solicitor general) support affirmative action; four conservatives loathe it; and Justice Anthony Kennedy is torn between his dislike of affirmative action and his aversion to societal upheaval.

The court has been here before, but Wednesday's arguments were striking for the disconnect between the persistent worldview of the conservative justices and the current reality of campus unrest.

The conservative justices see white students as the aggrieved party. When, asked Justice Antonin Scalia, will colleges "stop disadvantaging some applicants because of their race?" These justices disdain the benefit of a diverse campus. "What unique perspective does a minority student bring to a physics class?" asked Chief Justice John Roberts. They want out of the whole distasteful enterprise.

Some scholars argue, as Scalia offensively suggested, that minority students would be better off at "a slower-track school where they do well," rather than having to compete against better-credentialed students at more elite institutions. "I'm just not impressed by the fact that the University of Texas may have fewer," Scalia offered. "Maybe it ought to have fewer." That sounds like a decision for university officials or the state Legislature -- not unelected judges pronouncing social policy from the bench.

"Now is not the time and this is not the case to roll back student-body diversity in America," the university's lawyer, Gregory Garre, responded. After Ferguson and Charleston, Baltimore and Chicago, after a fall during which college presidents found themselves stunned by minority students' complaints, that seems undeniable.

It's hard enough to create campuses -- and with them, businesses and national institutions -- that reflect America's diversity. Does the court -- to put it more precisely, does Justice Kennedy -- really want to add to the turmoil, and make this enterprise, difficult yet essential, even less attainable?

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Ruth Marcus' email address is ruthmarcus@washpost.com.