( CNN ) -- The Supreme Court has just agreed to take on the case of Fisher v. University of Texas . Abigail Fisher , a white woman , argues that she has been a victim of the university 's race-conscious admission policies ; the university contends that its drive for racial and ethnic diversity is educationally enriching -- a benefit to all students . Will the ugly discourse that generally characterizes debate over racially preferential policies disappear with the wave of a magic Supreme Court wand ? It seems unlikely . The issue is a cat with many more than nine lives . It arrived in the early 1970s and , despite many attacks , some of which have taken the form of amendments to state constitutions , it has survived in pretty fine fettle . The court will have only eight justices to hear the arguments . Elena Kagan , having been involved in the case as solicitor general in the Obama administration , has bowed out of participation . Her absence , however , leaves five justices likely to express at least some degree of skepticism about the racial preferences given to non-Asian minorities in the admissions process . Has the University of Texas been enriched by academic diversity ? Maybe . But equally likely is the possibility that racial double standards reinforce stereotypes about smart whites and even smarter Asians . There are certainly wide gaps in the average SAT scores between blacks and Hispanics , on the one hand , and whites and Asians , on the other hand . Among freshmen entering the University of Texas in 2009 who did not fall into the top 10 % of their high school class ( automatic admission at the university ) , Asians scored at the 93rd percentile of 2009 SAT takers nationwide , whites at the 89th percentile , Hispanics at the 80th percentile and blacks at the 52nd percentile . Startling ? No . This picture has been well known for a long time . Heartbreaking , yes , because the numbers mean the underperforming minority students are being woefully ill served by the K-12 school system . Moreover , arriving at institutions of higher education with an academic disadvantage , they do not catch up , as it has become clear . Justice Sandra Day O'Connor ( now retired ) wrote the majority opinion in a University of Michigan law school affirmative action case decided by the high court in 2003 . The life of that decision is now on the line in Fisher . O'Connor should not be proud of her work in that decision . It was -- not to put too fine a point on it -- dishonest . She claimed that the law school engaged `` in a highly individualized , holistic review of each applicant 's file . '' Race was considered as simply one factor among many . Did she actually believe her own argument ? The law school 's own expert provided data clearly showing racial double standards in admissions -- contradicting her `` holistic '' claim . The University of Michigan 's undergraduate college mechanically awarded substantial points to an applicant from an `` underrepresented '' minority group , and O'Connor pretended the law school 's process was very different . In fact , as Justice David Souter pointed out , the law school simply concealed a race-driven admissions process that involved preferences actually greater than those given to undergraduate applicants . Taunting his colleagues , he called it an exercise in `` hide the ball . '' O'Connor 's whole decision rested on the assumption that preferences were temporary medicine for a problem already fixing itself . There was every reason to `` expect , '' she wrote , that in another quarter of a century , the pool of academically high-performing black and Hispanic applicants would have so grown as to make race-conscious admissions the strategy of a bygone era . The credulous reader might believe this confident optimism . The knowledgeable reader will know that she was either scandalously ignorant of the real record or deliberately and irresponsibly deceptive . In the dozen years preceding her opinion , the black-white gap in mean SAT scores had actually widened , and continues to do so . Hopes are running high among opponents of racial preferences that a majority of five on the court will declare affirmative action policy unconstitutional in public colleges and universities . ( Private schools would not be affected by a reversal of the policy . ) No fancy constitutional footwork -- just a clean execution . That will surprise me . For that to happen , five justices would have to be comfortable with the idea of screaming media headlines and much blog chatter about a court hostile to racial equality and indifferent to the gaps in opportunity that have for so long characterized American society . Will one of the men running for president raise his hand and say loudly and clearly , I oppose racial preferences in admissions to institutions of higher education ? Do n't hold your breath , unless you are willing to keel over from lack of oxygen . Follow CNN Opinion on Twitter . Join the conversation on Facebook . The opinions expressed in this commentary are solely those of Abigail Thernstrom .
The Supreme Court has agreed to take on a case about race-conscious admission policies . Abigail Thernstrom : If the court declares affirmative action unconstitutional , it 'll be surprising . She says that the life of a 2003 decision by Justice Sandra Day O'Connor is now on the line . Thernstrom : The gap in mean SAT scores between blacks and whites persists .