Supreme Court Takes Up Affirmative Action Case

                                                                    (Image Credit: Mark Wilson / Getty Images)

The Supreme Court said today it would take up another hot-button social issue - affirmative action - around the time of the next presidential election.

The court has agreed to hear a case brought by Abigail Fisher, a white student, who says she was denied admission to the University of Texas based on the color of her skin.

The case has been closely monitored because supporters of affirmative action fear the high court might now be willing to curtail or restrict further race conscious admissions programs at public universities. Justice Elena Kagan will not participate in the case because she dealt with the issue in her previous job as U.S. solicitor general. 

With a full slate of arguments already scheduled for its spring term, the court will most likely hear the case next fall, around the time of the election.

"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," says Edward Blum, the director of the Project on Fair Representation, a non-profit legal defense foundation that has provided legal counsel for Fisher.

The Texas legislature passed the "Top Ten Percent Law" in 1997 that 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 program, 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 racial preferences. She was denied admission and argues it was because of her race.

Her lawyers argue in court papers, "Whether a public university can layer racial preferences over a non-racial 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.

"[T]he 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 in this instance, Justice Samuel Alito replaced Justice O'Connor on the bench.

"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," Blum of the Project on Fair Representation said. "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."

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

But some analysts believe the court could go as far as re-examining the Grutter decision.

Larry Purdy, who represented Barbara Grutter in her challenge to the University of Michigan Law School's admissions policy, says 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."