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The U.S. Supreme Court agreed to consider rolling back university affirmative action programs, entering a racially charged debate by accepting an appeal from a rejected white applicant to the University of Texas.
The appeal takes aim at a 2003 Supreme Court decision that let universities consider the race of their applicants to help ensure campus diversity. That ruling extended the life of affirmative-action programs begun decades ago at universities around the country. The court’s decision Tuesday to hear the Texas case means those programs may be in jeopardy.
“If any state action should respect racial equality, it is university admission,” the rejected student, Abigail Noel Fisher, argued in her appeal, which invokes the Fourteenth Amendment’s equal protection clause. “Selecting those who will benefit from the limited places available at state universities has enormous consequences for their futures and the perceived fairness of governmental action.”
The justices will hear the case in the nine-month term that starts in October, potentially with arguments before the November presidential election. Justice Elena Kagan didn’t take part in Monday’s action, probably because she played a role in the litigation as an Obama administration official. If so, she won’t participate when the court hears the case.
The case will test the impact of the court’s changed membership, particularly the 2006 retirement of Justice Sandra Day O’Connor, who wrote the 2003 opinion, and the appointment of her successor, Justice Samuel Alito. Alito, along with Chief Justice John Roberts, was in the majority in a 2007 decision that put new limits on public school integration efforts — and raised questions about the viability of other race-based government policies.
The 2003 ruling, Grutter v. Bollinger, said admissions officers can consider race as part of a “holistic” review of the applicant’s file. On the same day, the justices struck down a separate affirmative action program they said was too mechanistic.
The rulings re-affirmed the 1978 Supreme Court decision that gave a limited endorsement to affirmative action. Affirmative action programs are widespread at both selective private universities and state institutions.
In urging the court not to hear Fisher’s case, Texas argued that “those who drafted and ratified the Fourteenth Amendment did not establish the principle of ‘colorblind’ government that opponents of race-conscious admissions so often invoke.”
The state says it uses race in a more limited way than the University of Michigan Law School, whose admission system was at issue in the Grutter case. Texas says that, unlike Michigan, it doesn’t track the racial composition of its entering class during the admissions process. Texas also says it doesn’t have numerical goals for minority admissions.
Texas uses a system that combines racial preferences with a rule that guarantees admission to state residents who graduate in the top 10 percent of their high school class. The so-called Top Ten Percent Law was designed in part to boost minority admissions at state universities.
One issue for the court will be whether the hybrid nature of Texas’s approach undermines the rationale for race-based admissions.
Fisher’s lawyers point to statistics indicating that the Top Ten Percent Law, enacted in 1997, was helping ensure a significant number of minority students even without explicit consideration of race.
In 2004, the last year race wasn’t considered, the entering freshman class at the university was 21.4 percent black and Hispanic. The freshman class that entered in the fall of 2011 was 26.3 percent black and Hispanic, according to the university website.
Fisher says the high court doesn’t necessarily have to overturn the Grutter ruling to strike down the Texas system. At the same time, her lawyers told the court it might need to reconsider the 2003 ruling “to restore the integrity of the Fourteenth Amendment’s guarantee of equal protection.”
A federal appeals court in New Orleans upheld the Texas system.
In taking up the appeal, the Supreme Court brushed aside the state’s contention that the case was “moot” — that is, no longer involved an active dispute that would give the court authority to rule — because Fisher is scheduled to graduate from Louisiana State University in 2012.
The case is Fisher v. University of Texas at Austin, 11-345.
