Affirmative action's fate is up to court

  • Article by: ROBERT BARNES
  • Washington Post
  • February 21, 2012 - 9:11 PM

WASHINGTON - The Supreme Court said Tuesday that it will consider whether the time has come to eliminate affirmative action in college admissions, resurrecting in an election year questions about the role race should play in American life.

The court will hear a white student's claims that the University of Texas's race-conscious admissions policy cost her a spot in the freshman class. A divided court only nine years ago said that universities were allowed to take race into account as one of many factors in considering applicants, when attempting to assemble a diverse student body.

Opponents of affirmative action hope that the current court, more conservative than the one that made the 2003 decision, will further constrain the use of race or eliminate it completely.

The affirmative action case adds to a remarkable convergence of controversial social issues on the court's docket, even as the justices themselves take on a higher, election-year profile.

The court's 2010 decision in Citizens United vs. Federal Election Commission, allowing unlimited corporate and union election spending, has roiled the world of political fundraising. Next month, the justices will hear six hours of oral arguments about President Obama's health care overhaul. After that, they will consider Arizona's controversial attempts to crack down on illegal immigrants.

And it seems inevitable that the court will be drawn into partisan fighting over political redistricting as well as the question of same-sex marriage.

The affirmative-action case will be heard when the court's new term begins in October, just as the nation turns to the presidential election.

Scope of ruling

Edward Blum, director of the Project on Fair Representation, which is representing Abigail Noel Fisher, the student rejected by UT, said the case "presents the court with an opportunity to clarify the boundaries of race preferences in higher education or even reconsider whether race should be permitted at all under the Constitution's guarantee of equal protection."

The Obama administration supported Texas in the lower courts and has advised colleges and universities that under the court's 2003 decision, they may still make some race-based decisions to expand campus diversity. UT President Bill Powers said that is the goal of the admissions policy.

The court since 1978 has been closely divided on the use of racial preferences, but it reaffirmed its support for limited use in the 2003 case, Grutter vs. Bollinger. Justice Sandra Day O'Connor wrote for the five-member majority upholding a University of Michigan Law School policy, saying it was legitimate to use race as a factor in a holistic evaluation of an applicant to create a "critical mass" of minority students.

"We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today," she wrote.

But O'Connor has been replaced by Justice Samuel Alito, who in past decisions has disapproved of racial classifications by government. Justice Anthony Kennedy, the justice who most often sides with the court's liberals on social issues, was a dissenter in the Grutter decision. And one of the court's liberals, Justice Elena Kagan, has recused herself from the Texas case, presumably because of her previous job as Obama's solicitor general.

Variances by state

Although the 2003 decision allowed the limited use of race, many states do not allow admissions officials to consider race in their decisions.

Texas has a unique system. It provides admission for those in the top 10 percent of their Texas high schools. Fisher, of Sugar Land, did not make that cut and was put into a pool of applicants in which race is considered along with other factors, such as community service, leadership qualities, test scores and work experience.

Fisher enrolled at Louisiana State University and is on track to graduate this spring.

Her lawyer, Bert Rein, has argued that considering race is not necessary because UT's race-neutral policy for the top 10 percent already brings in percentages of minority students "far beyond" the numbers at issue in Grutter.

But UT officials do not feel that is enough for a state in which in the near future there will be no majority race.

A panel of the U.S. Court of Appeals for the Fifth Circuit upheld the Texas plan, but several high-profile conservative judges from the circuit urged Supreme Court review.

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