Professor Wendy Parker discusses Fisher v. University of Texas at Austin at WFU’s observance of Constitution Day

WFU Law Professor Wendy Parker predicted Monday the U.S. Supreme Court would block or otherwise place limits on the use of race in college admissions.

Parker made her prediction during a discussion of Fisher v. University of Texas at Austin. The discussion was part of Wake Forest University’s observance of Constitution Day. Whatever the courts decide, it will have implications for all colleges that accept federal funds, including Wake Forest.

Abigail Fisher is a white student who was turned down at the University of Texas when she applied out of high school. She said race was unfairly used as a consideration given that the Texas student body was already diverse.

Fisher sued and lost. Her attorneys took the case to the Fifth District Court of Appeals, which also sided with the university. The Supreme Court agreed to hear the case, just nine years after making a landmark decision in Grutter v. University of Michigan Law School in which the court ruled that diversity was a valid consideration in admissions.

Parker argued that on some questions the framers of the Constitution were “a little wimpy,” and that one of those issues was race. For example, the Constitution doesn’t use the words “slave” or “slavery,” Parker noted. “It wasn’t honest” in how it dealt with non-whites at the time, she said.

The 14th Amendment was ratified in the wake of the Civil War, and guaranteed citizens the right to equal protection under the law. That, Parker said, led to a debate that continues today about what is meant by “equal.” Does it mean treat everybody the same? Or does society and the government bear some responsibility to redress inequalities in areas such as education, health care and income?

Parker used quotes from two chief justices to frame the discussion.

Current Chief Justice John Roberts has argued for a color-blind approach: “The way to stop discrimination on the base of race is to stop discriminating on the basis of race,” he wrote in 2007.

In the famous Brown v. Board of Education case, Chief Justice Earl Warren took a different approach to the issue: “Separate educational facilities are inherently unequal,” Warren wrote in 1954.

The difference in interpretations led to a lively discussion among the audience, which was made up mostly of law students. Some argued against the color-blind approach, saying that it assumes people begin at the same starting place and have the same opportunities, which is not true in the real world.

Others agreed with Justice Roberts, arguing that race is an arbitrary way to address inequalities because we all start out at different levels.

The Grutter case was decided by a close 5-4 vote, with Justice Sandra Day O’Connor writing for the majority. There has been considerable turnover in the court since that case was decided, including the departure of O’Connor in 2006.

Parker predicted a 5-3 vote the Supreme Court will close the window on some of the ways universities attempt to achieve diversity. In reaching that prediction, Parker said she expected Justices Roberts, Anton Scalia, Clarence Thomas and Samuel Alito to vote in favor of a color-blind approach, as they historically have done. She expects Justice Andrew Kennedy to join those four justices.

Justice Elena Kagan will not take part in Fisher case, so only eight justices will be voting. If it ends in a 4-4 tie, the appeals court decision in favor of the University of Texas will be upheld, Parker said.

The Court is scheduled to have a one-hour hearing on the case Oct. 10. A decision is likely to be released in the spring of 2013, Parker said.

University Provost Rogan Kersh introduced Parker’s discussion. Kersh said that upon ratification, the Constitution quickly became the thing that kept the young nation intact, and that facsimiles of the Preamble and the Constitution were among the highest selling items in the new nation. “The Constitution literally and figuratively bound the country together,” Kersh said.

He said he hoped that the document will retain that near-universal affirmation it held in its earliest days.