Not surprisingly, the United States Supreme Court has decided to take up an appeal of a White female student rejected admission into the University of Texas law school. She argues that African American and Hispanic students with inferior credentials were admitted over her using via the school’s Affirmative Action plan.
This case, Fisher v. University of Texas, was a follow up to the last Texas Affirmative Action case the 5th Circuit Court of Appeals decided known as Hopwood v. Texas. In that 1996 case, the Court ruled the school system’s Affirmative Action program was not narrowly tailored enough to meet a compelling state interest and then overruled a diversity admission policy at the law school. It stated the school could not use race as a factor in admission decisions.
To get around that decision and do its part to increase Black and Latino admissions, the University of Texas system opted on a plan to admit the top 10 percent of all high schools. That move caused minority student admissions to jump 21 percent.
However, when the US Supreme Court took up Affirmative Action in 2003 through Grutter v. Bollinger, the majority stated that diversity is an interest that schools can and should promote so long as they meet the strict standard: that its policy was narrowly tailored to meet the compelling interest in diversity promotion.
After that case, Texas expanded its Affirmative Action efforts beyond just the top 10% and started taking into account diversity when making admission decisions. It’s been operating under that program until 2008 when Fisher sued after denied admission.
She claims the schools’ Affirmative Action policy has become more like a racial quota. That is what the dissenting judge stated in the case below – that use of a racial animus opens the door to numerical admission based on race alone. But, that was the minority opinion. Fisher managed to push her case up the ladder and was granted a review by the Supreme Court this week.
What will stand out this round is that the Supreme Court that heard the University of Michigan case, thereby empowering Texas to change its policy back then, is not the current court of 2012 which is dominated by conservatives, 5-4.
It gets even more complicated because Justice Elena Kagan, who was the solicitor general in the case below, has recused herself.
That maneuver stacks the court with even more conservative Justices, increasing the odds that Affirmative Action may be struck down in its entirety or, at the least, in more extreme ways than before. Justices John Roberts, Antonin Scalia, Clarence Thomas and Samuel Alito have previously taken anti-Affirmative Action stances in prior decisions. Justices Sonia Sotomayor, Ruth Bader Gingsburg and Stephen Breyer are more liberal and are more likely to uphold the Texas Affirmative Action program. Hence, this decision will hinge on Justice Anthony Kennedy, who under the current make up of the court has become the “swing” vote, though he’s voted with the conservative wing 63% of the time since 2010. However, he occasionally sides with the liberal wing according to the SCOTUS Blog.
It’s worth noting that Kennedy has voted against Affirmative Action in the past. In 1989, he voted in City of Richmond v. J.A. Croson Co. against federal contractors setting aside 30% of contracts for African Americans. Also that year, he voted with the majority to allow disgruntled White workers in Martin v. Wilks to challenge Affirmative Action settlements. That same year, he also voted in Wards Cove Packing v. Atonio which challenged numerical underutilization of women or minorities.
Several groups have filed amicus briefs in this potentially landmark case.
It’s not to say that this will mean that Affirmative Action programs will be automatically ruled unconstitutional, per se. But, the court may look to Texas’ Affirmative Action program, invalidate it, and possibly set up a higher bar for other colleges and universities to climb in order to use race in admission.
Such a move could, in effect, invalidate all government Affirmative Action programs nationwide.
Conservative think tanks are watching and hoping this will be the year that Affirmative Action goes by the wayside permanently. And it’s one more perfect hot button issue for the elections, just in time to see if the first Black president gets re-elected.