Nearly a decade after the Supreme Court last considered the constitutionality of affirmative action in college admissions, the Court announced on Tuesday that it will review a challenge to the race-conscious admissions policy at the University of Texas.

In 2003, the Court considered two cases involving the University of Michigan and issued a pair of opinions that barred the use of quotas, but allowed race to be considered as one of many factors to promote diversity.

In Grutter v. Bollinger, the Court declared that the University of Michigan Law School was permitted to use race as one of many plus factors in a holistic approach to admissions with the goal of achieving racial diversity. But in the companion case, Gratz v. Bollinger, the justices struck down an undergraduate admissions methodology because the university had placed too much emphasis on race in evaluating applicants in a quota-like point system that automatically gave substantial bonus points to applicants from certain minority groups.

In the wake of the Michigan cases, the Texas legislature enacted the “Top Ten Percent Law,” which requires any Texas state university, including the University of Texas–Austin, to automatically admit a student who had finished in the top 10 percent of the class in a Texas high school. Following the Grutter model, the University of Texas then considered race as a plus factor in the holistic approach used to determine the remaining offers of acceptance for students who are not included under the “Top Ten Percent Law.” Since its passage, the law has accounted for a majority of actual admissions each year and has resulted in a significant increase in minority enrollment at the flagship state university.

Now the Supreme Court has agreed to hear Fisher v. University of Texas–Austin, a suit brought by Abigail Noel Fisher, who was not included in the top 10 percent and was denied admission to the university in 2008. She claims that her denial was based on her race, and her suit asks the Court to consider whether it is constitutionally permissible for a public university to consider race or ethnicity as a plus factor when there is already a race-neutral policy in place that promotes diversity by guaranteeing admission to the top 10 percent of every high school class.

The U.S. Court of Appeals for the Fifth Circuit rejected Fisher’s claims and upheld the race-conscious admissions policies.

In gauging the potential significance of the Fisher case, it must be noted that the makeup of the Supreme Court has changed substantially since the Grutter and Gratz decisions in 2003. Justice Sandra Day O’Connor, who wrote the 5-4 decision in Grutter, is no longer on the Court and was replaced by Justice Samuel Alito.

Of the five justices who voted with the majority in Grutter, only Justice Ruth Bader Ginsburg and Stephen Breyer remain. Among the four dissenters in Grutter, three are still serving—Justices Anthony Kennedy, Antonin Scalia, and Clarence Thomas. New to the Court since the decision are Chief Justice John Roberts, Jr., and Justices Samuel Alito, Elena Kagan, and Sonia Sotomayor.

The Fisher case will be decided by an eight-justice Court. Justice Kagan recused herself because she had approved the Justice Department’s brief in the case before the Fifth Circuit during her tenure as Solicitor General.

As is so often the case, all eyes are on Justice Kennedy. While he voted with the dissenters in Grutter, he rejected the Michigan law school’s admissions policies on fairly narrow grounds and has not declared himself in opposition to the general diversity rationale underlying race-conscious admission policies that formed the basis for Justice O’Connor’s decision.

The Court’s order did not put this case on an expedited schedule and, considering the nearly full schedule for this session, it is expected that the Court will hear oral arguments in Fisher during its next term, which begins in October 2012.

Copyright © 2012 by Ballard Spahr LLP.
(No claim to original U.S. government material.)


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