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              The Supreme Court is seen in Washington, Monday, Oct. 1, 2012. The Supreme Court is embarking on a new term that could be as consequential as the last one with the prospect for major rulings about affirmative action, gay marriage and voting rights. (AP Photo/Carolyn Kaster)
              The Supreme Court is seen in Washington, Monday, Oct. 1, 2012. The Supreme Court is embarking on a new term that could be as consequential as the last one with the prospect for major rulings about affirmative action, gay marriage and voting rights. (AP Photo/Carolyn Kaster)   

Supreme Court takes up affirmative action in major case

David Demirbilek
Contributor

The Supreme Court on Wednesday will hear one hour of oral arguments in the case Fisher v. University of Texas at Austin, substantially revisiting the topic of racial preferences  and affirmative in higher education for the first time in nearly 10 years.

Fisher is challenging the University of Texas’ race-based affirmative action policy, which she said led to her rejection from the school in 2008.

Fisher brought suit in federal court later that year, alleging that UT violated the Equal Protection Clause of the Fourteenth Amendment. Federal district and appellate courts both ruled in favor of the university’s system of racial preferences in 2009 and 2011, respectively.

The Supreme Court agreed to hear the case in February.

History of affirmative action in Texas

The Texas policy Fisher is challenging developed amid significant changes in the implementation and legality of state and national affirmative action.

Thirty years prior to Fisher’s application to UT, the Supreme Court issued its first landmark ruling on affirmative action in the case Regents of the University of California v. Bakke.

In Bakke, the Supreme Court found that more overt forms of affirmative action, such as quotas, were unconstitutional. However, the ruling also stated that a university could use race as one factor in screening applicants to promote diversity among its student body.

Texas subsequently joined numerous other states in adopting diversity-enhancing racial preferences in higher education.

The legal landscape dramatically changed in 1996, when the Fifth Circuit Court of Appeals struck down Texas’s affirmative action policies in the case Hopwood v. Texas. The Supreme Court refused to hear an appeal of the case, so for every state in the Fifth Circuit — Texas, Louisiana, and Mississippi — the ruling of the appeals court striking affirmative action became law.

In an attempt to increase minority representation in college in the wake of Hopwood, Texas enacted a racially neutral solution in 1997, known as the “Top Ten Percent Law.”

The law mandated that Texas high school seniors in the top ten percent of their class be automatically admitted to any Texas state university. Over time, the number and percentage of enrolled Hispanics and African-Americans substantially increased in Texas universities, principally due to the fact that both commonly attend minority-majority high schools.

Yet another seismic shift occurred in 2003 with the dual Supreme Court decisions Grutter v. Bollinger and Gratz v. Bollinger. In Gratz, the Court struck down a system of racial preferences that automatically granted extra points to minorities in a numerically scored admissions system.

However, in Grutter, the Court upheld the use of race as a modest subjective plus factor in admissions criteria.

With Grutter’s narrow upholding of affirmative action, the Fifth Circuit’s ruling in Hopwood crumbled. Texas re-instituted racial preferences in college admissions shortly thereafter.

As a result, there now exist two categories of admitted students at Texas universities:  1) those who enter under the Top Ten Percent plan, and 2) the remainder, who are admitted through a holistic approach that includes the racial preferences cleared by Grutter.

The majority of students are selected through the Top Ten Percent Law. For example, 81 percent of the entering class was admitted under the law in 2008.

However, Fisher did not graduate in the top 10 percent of her high school class, so she was thrown into the remaining pool, where racial preferences were utilized in the review of her application.

Fisher is only challenging UT’s racial preferences. She does not contest the Top Ten Percent Law.

Breakdown of the case

Consistent with previous Supreme Court affirmative action decisions, both Fisher and UT agree that the Supreme Court should strictly scrutinize UT’s racial preferences under the Equal Protection Clause of the Fourteenth Amendment.

Specifically, they agree that Texas must “… demonstrate both that its use of race in admissions decisions is necessary to further a compelling government interest and that the means chosen to accomplish the government’s asserted purpose are specifically and narrowly framed to accomplish that purpose.”

Fisher believes that UT’s racial preferences fail under this standard for a few reasons.

One of her key arguments revolves around the fact that Texas already possesses a method to increase minority college enrollment in the Top Ten Percent Law. Therefore, she argues that the use of racial preferences when there exists a racially neutral solution for minority enrollment fails the test of being “narrowly framed.”

Additionally, Fisher accuses UT of attempting to achieve an amount of minorities in its student body proportionate to the general population. She asserts that this is tacitly the equivalent of using quotas, ruled unconstitutional in 1978 in Bakke.

UT believes its racial preferences are sufficiently narrowly tailored to pass constitutional muster and are benign attempts to increase diversity instead of quotas.

Grutter — still good law?

In her challenge, Fisher is petitioning the Court to either completely overrule Grutter v. Bollinger, or at least distinguish the 2003 decision in a way that would strike down the Texas affirmative action policy.

Grutter was a 5-4 decision, with Justice Sandra Day O’Connor providing the swing vote in favor of affirmative action.

Due to the 2006 appointment of Samuel Alito to fill O’Connor’s seat, Fisher comes before a Court more skeptical of affirmative action than it has ever been since the issue emerged in the 1960s.

Five justices known to be critical of affirmative action now sit on the Court. Justice Kennedy, often a swing vote in high-profile cases, has been a reliable opponent of affirmative action, having penned a vigorous dissent in Grutter.

One last challenge could stem from a remark in Sandra Day O’Connor’s majority opinion in Grutter expressing that the Court expects racial preferences will no longer be necessary 25 years after the ruling. Nearly 10 years down the road, the Court may choose to reconsider what is often derided as Grutter’s arbitrary 25-year deadline.

An empty seat

Justice Elena Kagan has recused herself from the case.

Kagan served as Solicitor General from 2009 until her appointment to the Court in 2010. Fisher’s case was traveling up the federal court system during Kagan’s tenure, when the federal government was supporting affirmative action policies.

Even though Justice Kagan has recused herself, Fisher must still convince five justices to vote in her favor to overrule or limit Grutter, rendering Kagan’s absence functionally insignificant.

Friends of the court

Dozens of organizations have filed amicus curiae briefs, volunteering information in these documents supporting Fisher, UT, or —in some cases — neither party.

In one noteworthy example, the United States continues to support the use of racial preferences in higher education.

The United States’s amicus brief, signed by numerous federal agencies, argues that racial preferences in higher education are necessary to ensure a reliable pipeline for minorities into the military through ROTC.

Other notable filers of amicus briefs in the case:

-Allen West:  The Florida Republican congressman counters the United States’s position that the military benefits from the use of racial preferences. He argues for a colorblind military, citing sources ranging from Harry Truman’s executive order desegregating the military to Colin Powell’s autobiography.

-California:  Although California voters in 1996 amended their constitution through Proposition 209 to prohibit racial preferences in public education, Attorney General Kamala Harris filed a brief in favor of UT and racial preferences.

-Fortune 100:  Over 50 corporations, many members of the Fortune 100, signed on to a brief in support of UT’s policies. The corporations, ranging from Wal-Mart to Shell Oil, argue that the use of racial preferences to further diversity is needed even more now than was so when Grutter was decided in 2003, due to an increasingly global marketplace.

-Affirmative action critics:  Husband and wife scholars Stephan and Abigail Thernstrom call into question the benefits of increased contact among distinct racial groups, often touted as the key benefit of affirmative action by its supporters. The Thernstroms argue that this interracial contact functions best when students are of equal ability academically and not mismatched by racial preferences.

Public Perception

Less than a week before oral arguments were set to begin in Fisher, Georgetown’s Berkley Center for Religion, Peace & World Affairs released a poll examining the attitudes of millennials aged 18-25 toward affirmative action. The October 4 poll was part of a larger study of millennial voter engagement in the 2012 election.

Although often noted for their socially liberal political views, millennials consistently sided against the use of racial preferences. Forty-seven percent of millennials responded that they generally oppose affirmative action programs to redress past discrimination, while 38 percent support these programs.

When specifically asked about the usage of racial preferences in higher education, 69 percent responded that minorities should not receive preferences, while only 19 percent favored such programs.

In February, Rasmussen found similar results in a poll of likely U.S. voters: 55 per cent responded that minorities should not receive preferences in higher education admissions, while only 24 percent supported these programs, and 21 percent were undecided.

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