U.S. Supreme Court to Revisit Affirmative Action

In 2008, a high school senior named Abigail Noel Fisher applied for undergraduate admission to the University of Texas at Austin, which had a policy (link to$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p_ploc=&pg=1&p_tac=&ti=19&pt=1&ch=5&rl=5) of admitting all students ranked in the top 10 percent of their senior class. Fisher wasn’t a top-tier student, and she didn’t get in.

The university’s automatic admission rule was intended to ensure that minority students from schools segregated by neighborhood got an equal chance (link to to attend. But as admissions under the policy didn’t fill all available freshmen slots, UT Austin also admitted students who scored below the 10 percent cut-off but whom it thought would add to the school’s diversity.

Fisher sued.

She argued UT Austin had discriminated against her as a white student when it accepted other students whose grades were also less than top-tier but who were Latino and black. Although she has not won her argument in the U.S. District Court, nor in the Fifth Circuit Court, her case, Fisher v. University of Texas at Austin (link to, comes before the U.S. Supreme Court this month. One of the most prominent cases before the court this term, it could determine the future of affirmative action in the United States.

On Oct. 10 this year, the Supreme justices will hear oral arguments addressing the question: Should public universities use race in their consideration of college applications to fulfill their goal of a diverse student body?

If you thought the court had already addressed that question some years ago, you’d be right. In 2003, in a case called Grutter v. Bollinger (link to, the Supreme Court ruled 5-4 in favor of the University of Michigan Law School’s use of race as one factor – but not the only determining factor — in making admission decisions, citing diversity as a valid goal for universities under the equal protection clause of the 14th amendment. In fact, UT Austin had carefully examined the Supreme Court’s ruling on Grutter before crafting its own affirmative action policy, according to several legal experts.

But the Grutter ruling was nine years ago, when the political balance of the court looked very different. Back then, the moderate Justice Sandra Day O’Connor cast the deciding vote in favor of the affirmative action policy, adding that she thought such a program would no longer be required in 25 years.

Justice O’Connor retired in 2006. Then-President George W. Bush appointed conservative Justice Samuel Alito in her place, who “has substantially more skepticism about the role of race in decision-making,” said Tom Goldstein, a co-founder of the explanatory site SCOTUSblog (link to and a lawyer who has argued 25 cases in front of the U.S. Supreme Court.

Now with a Supreme Court that Mike Seidman, a constitutional law professor at Georgetown University in Washington, D.C., calls “the most conservative in our lifetime,” some legal analysts doubt the Grutter ruling will remain in its entirety.

“I don’t think anybody thinks affirmative action is long for this world,” said Pamela Harris, a Georgetown law professor who was part of a recent panel discussion at the school on upcoming cases at the Supreme Court. “These shifts in personnel sometimes have enormous consequences and I think this is a case where we will see that.”

A complicating factor in any verdict from the court is that there will be only eight judges to vote on the case: Justice Elena Kagan, who was appointed to the court in 2010 by President Barack Obama, has recused herself from the case because she served as solicitor-general when the Obama administration filed a brief in support of UT Austin while the case was being considered by the Fifth Circuit Court.

For this and other reasons, Justice Anthony Kennedy is widely regarded by legal experts as the pivotal vote for this case. Justice Kennedy, who cast a dissenting vote in Grutter nine years ago, has never voted in favor of racial preference, said David Cole, a Georgetown Law professor.

Despite Justice Kennedy’s record, Cole thinks the court will uphold previous rulings on the legality of UT Austin’s approach to admissions. “I think there’s a very strong case in favor of the plan, that the challenge is largely based on misrepresentation,” Cole said.

But Goldstein, speaking at a discussion panel organized by the Heritage Foundation, did not share Cole’s optimistic assessment. “This is a question is how much of Grutter survives the change in the court’s composition,” Goldstein said.

He pointed out that Justice Kennedy had previously expressed strong opposition to affirmative action because it treats a person “as a member of a group rather than as an individual.”

While a complete overturn of precedent is unlikely, the court could dial back the availability of affirmative action in public schools, Goldstein said. “It’s quite likely that the UT Austin program will be in big trouble,” he said.

Meanwhile, Fisher herself has continued living her life. She recently graduated from Louisiana State University with a degree in finance. 


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