10/12/2012 05:16 pm ET Updated Dec 12, 2012

Answer in the Affirmative

Abigail Fisher may not have been interviewed by the University of Texas -- where she was denied admission in 2008 -- but Wednesday she did speak to the United States Supreme Court. "My parents always taught me that it is wrong to discriminate," Fisher said in a statement. Her words get to the crux of the arguments marshaled in Fisher v. University of Texas, which ascended through two lower courts before arriving in Washington Wednesday. The case asks whether the consideration of race in college admissions policies is constitutional. Dismissing race from admissions entirely leaves inherent, structural discrimination that is definitely unconstitutional. The Court should uphold precedent and allow the question of race to remain relevant on applications. This allows ethnicity to remain a factor for universities to weigh on a case-by-case basis.

There is some question as to whether the Fisher case even has standing. Last October, the University of Texas sent a petition to the Supreme Court that questioned the legal validity and broad, constitutional relevance that would make Fisher's case worth hearing at the national level. Some pundits indicate the justices may only review a specific Top 10 Percent admissions policy as offered in Texas, where the top 10 percent of every high school class is automatically admitted to public state universities. Fisher was outside the top 10 percent of her high school class and so faced much harder odds of admission; indeed, the University of Texas said her denial of admission had nothing to do with her race.

But many forecast the ruling could bring a monumental revision to precedent. Twenty-five years after Regents of the University of California v. Bakke ruled non-quota based affirmative action permissible, Grutter v. Bollinger defended this ruling in 2003. During that case, several assenting justices thought affirmative action would be worth reviewing in another 25 years, but now it is back. If the Court rules differently, it will stem more from a change in politics than constitutional logic.

The Fourteenth Amendment of the U.S. Constitution prohibits the state from denying "any person within its jurisdiction the equal protection of the laws," such as in cases of discrimination by race. Without affirmative action, there is unquestionably discrimination in policies of admission. The University, for instance, considers legacy a relevant factor in application: Dean of Admission Greg Roberts said "out-of-state legacy applicants are treated as if they are Virginians" in an interview in Fall 2009. Thus minority students -- for whom having generations of legacy is made more difficult, or impossible because of the University's history of segregation -- would be unfairly discriminated against should their race not be considered.

Moreover, an array of studies -- presented in an amicus curiae brief last week by the American Educational Research Association and several national sponsors -- explicitly shows that minority students are less likely to attend elite colleges, regardless of income. Black and Hispanic students also consistently score lower in admissions factors such as SAT scores. Although standardized tests should be used to gauge student merit, universities cannot ignore the widespread disparities resulting from race. Students who have educated parents are more likely to succeed, and minority students may not have this background because of educational segregation.

What affirmative action policies have allowed, since Bakke, is for universities to consider race as one factor among many when making selections. Some states, such as California, have disallowed race as an admission criterion altogether -- and its public colleges and universities saw minority enrollment drop as a result. By upholding precedent, the Supreme Court will allow questions of race to be addressed in a pragmatic, constitutional manner rather than a political one.