Affirmative Action - Could Justice Alito's Vote Change the Game?

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The Supreme Court could decide this week whether to delve into yet another hot-button social issue: affirmative action.

At issue is a lawsuit brought by Abigail Fisher, a white student, who said she was denied admission to the University of Texas because of the color of her skin. If the justices vote to hear the case, it could mean a majority of the court is willing to curtail or further restrict race-conscious admissions policies  at public universities.

The court is set to discuss the case in its closed-door conference this week and could announce as early as Friday whether it will add the case to next term's docket.

"This case presents the court with an opportunity to clarify the boundaries of race preferences in higher education, or even reconsider whether race should be permitted at all under the Constitution's guarantee of equal protection," said Edward Blum, the director of the Project on Fair Representation, a nonprofit legal defense foundation that has provided legal counsel for Fisher.

In 1997, the Texas legislature passed the "Top 10 Percent Law," which mandates that Texas high school seniors in the top 10 percent of their class be automatically admitted to any Texas state university. In addition to that policy, the school considers race along with several other 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 receive racial preference. She was denied admission and argued it was because of her race.

In court papers, her lawyers argued, "Whether a public university can layer racial preferences over a nonracial admissions plan that ensures very substantial levels of minority enrollment is a question which itself warrants review by this court."

It was only in 2003 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 5-4 decision - Grutter v. Bollinger - and held that the government has a compelling interest in diversity in public universities.

"The Equal Protection Clause does not prohibit the [University of Michigan] Law School's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body," O'Connor wrote in a decision joined by Justices John Paul Stevens, Ruth Bader Ginsburg, David Souter and Stephen Breyer.

But a lot has changed since then. Most importantly for this case, Justice Samuel Alito has replaced  O'Connor on the Supreme Court.

"The addition of Justice Alito to this court adds an element to the case that would not likely have been there with Justice O'Connor. The difference is that Justice Alito has shown himself in other cases to be more skeptical of racial classifications and preferences than did Justice O'Connor," said  Blum.

Texas Attorney General Greg Abbott, on behalf of the University of Texas, has advised the court to refrain from hearing the case. In court papers he said the case was  "shot through" with jurisdictional issues that  would "drag the court into a thicket of procedural " disputes, saying that the school's "holistic consideration of race" was patterned after "Grutter-approved practices."

But some analysts believe the court could take up the case and go as far as to re-examine the Grutter decision.

Larry Purdy, who represented Barbara Grutter in her challenge to the University of Michigan Law School's admissions policy, said that the ruling should be overturned. "In 2003, Grutter introduced a new and needlessly injurious color line.

"Brown v. Board of Education is the greatest case ever decided, and it held that racial discrimination in public education is unconstitutional. I think we need to re-establish that principle, and Grutter deviated from it. Today, on applications race does matter, and to me that's a sad testament. I don't think that diversity is a sufficiently compelling reason to use race."