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Supreme Court to review affirmative action case

GEORGE E. CURRY | 12/11/2015, 1:28 p.m.
Affirmative action is back on the front-burner at the U.S. Supreme Court, with the justices hearing oral arguments Wednesday in ...
Supporters of the University of Texas in its case against Abigail Fisher demonstrate at the Homer Thornberry Judicial Building, Nov. 13, 2013, in Austin. The Fifth Circuit Court of Appeals is rehearing the case of Abigail Fisher, a White woman who in 2008 was not admitted to UT-Austin because she did not graduate in the top 10 percent of her high school class – the criterion for 75 percent of the school's admissions. Jay Janner of Austin American-Statesman (left photo)

Clarence Thomas was the only justice who voiced support for overturning the court’s 2003 decision in Grutter, permitting the narrowly tailored use of race in college admissions. He said in his concurring opinion, “I write separately to explain that I would overrule Grutter v. Bollinger and hold that a State’s use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause.”

Justice Elena Kagan, a strong supporter of affirmative action, recused herself because she had worked on the case as solicitor general.

That leaves open the possibility that the court could deadlock 4-to-4, meaning the rulings of the two lower courts that upheld the University of Texas admissions program would be affirmed.

Educators thought the issue of affirmative action had been settled in a pair of University of Michigan affirmative action rulings in 2003 – one upholding the law school admissions program (Grutter v. Bollinger) and one striking down the undergraduate admissions process (Gratz v. Bollinger). In each case, the court declared that state universities have a compelling interest that could justify the consideration of race in college admissions because of the benefits that flow to all students from having a diverse student body.

It was only after the court’s ruling in Grutter that the University of Texas expanded its affirmative action plan beyond the 10 Percent Plan.

If there is any upside to Fisher’s challenge, it is she is not asking the court to overturn the Michigan decision affirming the constitutionality of affirmative action. Rather, she seems to focus on whether the appeals court properly applied “strict scrutiny” per the Supreme Court’s guidance.

Texas created its Top 10 percent program as a conservative way of increasing diversity in higher education. However, as many predicted at the time, it was not sufficient to increase Black enrollment. As Justice Stephen Breyer noted, “Before Hopwood [another affirmative action court case] and the 10 percent plan, it looked on the African American side that it averaged about 5 percent per year, really, pretty steadily. Then after Hopwood and 10 percent it went down a little bit, not a lot, but it went down to about 3 and a half percent, 4 percent, maybe. And then they introduced Grutter, and it’s back up to 5 percent.”

The U.S. Court of Appeals for the Fifth Circuit in New Orleans has twice upheld the Texas affirmative action program. Each time, the Fifth Circuit ruled that the program makes only limited use of race, and serves the university’s interest in a racially and culturally diverse student body in a way that complies with Supreme Court mandates.