Nine years after the Supreme Court said colleges and universities can use race in their quest for diverse student bodies, the justices have put this divisive social issue back on their agenda in the middle of a presidential election campaign.
Nine years is a blink of the eye on a court where justices can look back two centuries for legal precedents. But with an ascendant conservative majority, the high court in arguments Wednesday will weigh whether to limit or even rule out taking race into account in college admissions.
The justices will be looking at the University of Texas program that is used to help fill the last quarter or so of its incoming freshman classes. Race is one of many factors considered by admissions officers. The rest of the roughly 7,100 freshman spots automatically go to Texans who graduated in the top 8 percent of their high school classes.
A white Texan, Abigail Fisher, sued the university after being denied a spot in 2008.
The simplest explanation for why affirmative action is back on the court’s calendar so soon after its 2003 decision in Grutter v. Bollinger is that the author of that opinion, Sandra Day O’Connor, has retired. Her successor, Justice Samuel Alito, has been highly skeptical of any use of racial preference.
Justice Anthony Kennedy, a dissenter in the 2003 decision, probably holds the deciding vote, and he, too, has never voted in favor of racial preference.
As a result, said Supreme Court lawyer Thomas Goldstein, “No matter what the court does, it is quite likely that the UT program is going to be in big trouble.”
The challenge to the Texas plan has gained traction in part because the university has produced significant diversity by automatically offering about three- quarters of its spots to graduates in the top 10 percent of their Texas high schools, under a 1990s state law signed by then-Gov. George W. Bush. The admissions program has been changed so that now only the top 8 percent gain automatic admission.
More than 8 in 10 African-American and Latino students who enrolled at the flagship campus in Austin last year were automatically admitted, according to university statistics. Even among the rest, both sides acknowledge that the use of race is modest.