The Supreme Court announced Monday that justices would reconsider a case on the use of race in Texas college admissions that they originally heard in 2013.
The case — Fisher v. University of Texas — could provide a significant challenge to affirmative action policies because the court’s key swing voter, Justice Anthony Kennedy, has never voted to uphold an affirmative action program.
The justices also seemed primed to rule against affirmative action the last time they heard the case, even though they sent it back to a lower court.
The dispute centres around Abigail Fisher, a white woman in her mid-20s, who in 2008 sued the University of Texas at Austin after she was denied admission to the state’s flagship public university.
She claims she was discriminated against because of her race, and that UT Austin accepted non-white students with worse grades and fewer extracurricular activities.
Historically, the Supreme Court has held colleges have the ability to include race as a factor in admissions decisions. The key decision that seems to influence how the justices will approach Fisher’s case is Grutter v. Bollinger, a 2003 ruling finding the University of Michigan Law School could use race as part of a “holistic” admissions standard.
The makeup of the Supreme Court has changed since the Grutter decision, though. Perhaps most notably, former Justice Sandra Day O’Conner — who wrote the 5-4 decision allowing affirmative action in 2003 — retired and was replaced by Justice Samuel A. Alito Jr.
“Her replacement by Justice [Alito], who has been hostile to affirmative action programs, may have altered the balance on the court on whether such admissions programs are constitutional,” The New York Times reported in 2012.
After hearing arguments in the Fisher case that year, The Times reported, “it seemed tolerably clear that the four members of the court’s conservative wing” — Chief Justice John G. Roberts, Jr., as well as Justices Antonin Scalia, Clarence Thomas, and Alito — “were ready to act now to revise the Grutter decision.”
Kennedy also seemed “prepared to limit the Grutter decision,” according to The Times, while the court’s more liberal Justices — Ruth Bader Ginsburg, Stephen G. Breyer, and Sonia Sotomayor — all seemed to support the University of Texas. Justice Elena Kagan, who likely worked the case as the US government’s Solicitor General, has recused herself from hearing Fisher, as she did when the court last considered it.
The Supreme Court eventually decided 7-1 to send Fisher v. University of Texas back to a lower court to rehear the case with stricter scrutiny. Justice Ginsburg dissented, arguing that Texas was acting appropriately, while the other majority opinion held the lower court did not examine the necessity of UT Austin’s affirmative action policy closely enough.
The Fifth Circuit Court of Appeals affirmed Texas’ policy in a 2-1 panel decision, and dismissed Fisher’s case last year.
Legal journalist Joan Biskupic’s recent book on Justice Sonia Sotomayor — “Breaking In: The Rise of Sonia Sotomayor and the Politics of Justice” — revealed that the 7-1 decision was actually a compromise and the court was ready to rule against the University of Texas. In a New York Times op-ed earlier this year, Supreme Court reporter Linda Greenhouse highlighted Biskupic book in terms of what it might mean if justices again took up Fisher v. University of Texas.
“In the University of Texas case, it initially looked like a 5-3 lineup. The five conservatives, including Justice Kennedy, wanted to rule against the Texas policy and limit the ability of other universities to use the kinds of admissions programs upheld in Grutter v. Bollinger. The three liberals were ready to dissent,” Biskupic writes.
It’s not clear that much has changed in the past few years. Noting the Supreme Court needs four votes to decide to hear a case, Greenhouse writes, its likely the conservative justices “have persuaded themselves that Justice Kennedy will hold firm rather than seek another temperature-lowering compromise — and that the ensuing heat would be an institutional price worth paying.”
To some extent the Texas case is unique, as public high school students in the top 10% of their class are automatically offered admissions to UT Austin, although high-performing students can still gain admission through the regular application process, which considers factors such as race and ethnicity.
In her lawsuit, Fisher and her lawyers argued that the “Top Ten” program naturally assures enough student diversity that affirmative action is not needed, Scott Jaschik points out at Inside Higher Ed.
A ruling against the program, however, could have a wide-reaching impact on current affirmative action policies, as well as future cases heard by the Supreme Court.
Affirmative action advocates do have at least one avenue to keep Texas’ race-inclusive policy alive. If Kennedy does surprise and switches his vote this time around, the court could face a rare 4-4 tie, as Kagan has recused herself. In this situation, the Supreme Court’s ruling would revert back to the lower court, which most recently upheld the Texas program.
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