The New York Times is reporting that the U.S. Supreme Court has agreed to revisit race in higher education admissions.
In the 2003 Grutter v. Bollinger decision, the court, in a 5-4 vote, upheld the affirmative action admissions policy of the University of Michigan Law School, saying that the Constitution “does not prohibit the 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.”
But the court decision made clear that race had to be treated as a “plus” factor rather than as the sole factor and that quotas were illegal:
The Law School’s admissions program bears the hallmarks of a narrowly tailored plan. To be narrowly tailored, a race-conscious admissions program cannot “insulat[e] each category of applicants with certain desired qualifications from competition with all other applicants.” Instead, it may consider race or ethnicity only as a “ ‘plus’ in a particular applicant’s file”; i.e., it must be “flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight,” It follows that universities cannot establish quotas for members of certain racial or ethnic groups or put them on separate admissions tracks.
The Supreme Court has changed since Justice Sandra Day O’Connor wrote the majority opinion in Grutter, and it’s likely that current members of court will look askance at affirmative action in admissions.
Chief Justice John G. Roberts Jr. has been particularly skeptical of government programs that take account of race. “Racial balancing is not transformed from ‘patently unconstitutional’ to a compelling state interest simply by relabeling it ‘racial diversity,’ ” he wrote, for instance, in a 2007 decision limiting the use of race to achieve integration in public schools. Justices Alito, Antonin Scalia and Clarence Thomas agreed. Justice Anthony M. Kennedy, the court’s swing justice, was less categorical. But he has never voted to uphold an affirmative action program.
The new case, Fisher v. Texas, No. 11-345, was brought by Abigail Fisher, a white student who said she was denied admission to the University of Texas because of her race. The case has idiosyncrasies that may limit its reach, but it also has the potential to eliminate diversity as a rationale sufficient to justify any use of race in admissions decisions.
Students in the top 10 percent of Texas high schools are automatically admitted to the public university system. Ms. Fisher just missed that cutoff at her high school in Sugar Land, Tex. She sued in 2008, challenging the way the state allocated the remaining spots using a complicated system in which race plays an unquantified but significant role.
Ms. Fisher is soon to graduate from Louisiana State University. Lawyers for the University of Texas said that meant she had no standing to sue, an issue that the justices must now consider.
–From Maureen Downey, for the AJC Get Schooled blog