Supreme Court Affirmative Action Ruling Hinges on Kennedy

June 13, 2013 -- The college admissions process has ended for many relieved high school seniors and anxious parents this year, but the Supreme Court -- after 8 months -- is still considering a major affirmative action case that could change how public universities formulate future incoming freshman classes.

At issue is a challenge to the admissions plan of the University of Texas. Abigail Fisher, a white Texan, is challenging the program, arguing that she was denied admission to the school in 2008 based on the color of her skin.

Only eight justices will consider whether UT's plan violates the Equal Protection Clause of the Constitution after Justice Elena Kagan recused herself, presumably because she dealt with the case in her previous job as solicitor general.

Newly released polls show that 76 percent of Americans are opposed to the consideration of an applicant's race as a factor in deciding admissions.

The Texas legislature passed the "Top Ten Percent Law" in 1997 that requires all Texas high school seniors in the top 10 percent of their class be automatically admitted to any Texas state university. In addition to that program, the school considers race along with several socioeconomic factors for admission.

Fisher did not qualify for automatic admission. Instead she competed with other non-Top-10 state applicants, some of whom were entitled to racial preferences. She argues she was denied a fair chance at admission because of her race.

In court, her lawyers argued that "the Fourteenth Amendment requires an admissions process untainted by racial preferences absent a compelling, otherwise unsatisfied, government interest and narrow tailoring to advance that interest without undue infringement on the rights of non-preferred applicants."

They also argue that the top 10 percent plan has made UT one of the most diverse public universities in the nation and that the school did not need to overlay the successful race-neutral program with another one that considers race.

Lawyers for the University of Texas counter that the admissions plan is constitutional under the court's precedents. Race is only "one modest factor among many" for the individualized considerations of applicants and that the program works to offset drawbacks of the 10 percent law to achieve the university's interest in a diverse student body.

U.S. Solicitor General Donald B. Verrilli supports the UT plan. He told the justices in court, "I think it is important, you honors, not just to the government, but to the country, that our universities have the flexibility to shape their environments and their educational experience to make a reality of the principle, that our strength comes from people of different races, different creeds, different cultures, uniting in a commitment to freedom, and to a more perfect union."

Court Precedent:

It was only in 2003 -- in a case called Grutter v. Bollinger -- that the Supreme Court took up a similar affirmative action case and narrowly upheld the limited use of race as a factor in law school admissions. Justice Sandra Day O'Connor wrote the decision, but she has since been replaced by Justice Samuel Alito, who is more skeptical of racial classifications.

Although lawyers for Fisher say they are not asking for the court to directly overrule Grutter, Justice Sonia Sotomayor expressed skepticism at oral arguments: "So you don't want to overrule Grutter, you just want to gut it," she said.

Outcomes:

It seemed likely after arguments that at least four of the conservatives were poised to strike down UT's program. But how broadly? All eyes will be on Justice Anthony Kennedy, seen as a key vote on the issue.

He has said in the past that there is "no constitutional objection" to considering race as one modest factor among many others to achieve diversity. But he has never voted in favor of a race-conscious plan.

Among the possibilities, the court could limit the ruling by saying that UT didn't need to overlay a race-conscious program over a race-neutral program (top 10 percent plan) that was already working. Or it could rule more broadly and say, for example, that the lower court was wrong to defer to the university on the question of when it has reached sufficient diversity.

If the court rules by the end of the month to uphold UT's program, it will come as a tremendous relief to supporters of affirmative action. Because Justice Kagan is recused from the case, a 4-4 tie would leave the lower court decision in favor of the program intact, but have no broad precedential value.

The University of Texas is also challenging whether Fisher, who has now graduated from another university, has the legal right, or "standing," to bring the case.