Luke Sharrett for The New York Times
Published: February 21, 2012
Both sides in the debate on affirmative action saw a signal that the Supreme Court’s conservative members might do away with it.
WASHINGTON — In a 2003 decision that the majority said it expected would last for 25 years, the Supreme Court allowed public colleges and universities to take account of race in admission decisions. On Tuesday, the court signaled that it might end such affirmative action much sooner than that.
By agreeing to hear a major case involving race-conscious admissions at the University of Texas, the court thrust affirmative action back into the public and political discourse after years in which it had mostly faded from view. Both supporters and opponents of affirmative action said they saw the announcement — and the change in the court’s makeup since 2003 — as a signal that the court’s five more conservative members might be prepared to do away with racial preferences in higher education.
The consequences of such a decision would be striking. It would, all sides agree, reduce the number of African-American and Latino students at nearly every selective college and graduate school, with more Asian-American and white students gaining entrance instead.
A decision barring the use of race in admission decisions would undo an accommodation reached in the Supreme Court’s 5-to-4 decision in 2003 in Grutter v. Bollinger: that public colleges and universities could not use a point system to increase minority enrollment but could take race into account in vaguer ways to ensure academic diversity.
Supporters of affirmative action reacted with alarm to the court’s decision to hear the case. “I think it’s ominous,” said Lee Bollinger, the president of Columbia University, who as president of the University of Michigan was a defendant in the Grutter case. “It threatens to undo several decades of effort within higher education to build a more integrated and just and educationally enriched environment.”
Opponents saw an opportunity to strike a decisive blow on an issue that had partly faded from view. “Any form of discrimination, whether it’s for or against, is wrong,” said Hans von Spakovsky, a legal fellow at the Heritage Foundation, who added that his daughter was applying to college. “The idea that she might be discriminated against and not be admitted because of her race is incredible to me.”
Arguments in the new case are likely to be heard just before the presidential election in November, and they may force the candidates to weigh in on a long dormant and combustible issue that has divided the electorate. There was little immediate reaction from the campaign trail and in official Washington on Tuesday, which may be attributable to the political risks the issue presents to both Democrats and Republicans.
Some polls show that a narrow majority of Americans support some forms of affirmative action, though much depends on how the question is framed, and many people have at least some reservations.
The new case, Fisher v. University of Texas, No. 11-345, was brought by Abigail Fisher, a white student who says the University of Texas denied her admission because of her race. The case has idiosyncrasies that may limit its reach, but it also has the potential to eliminate diversity as a rationale sufficient to justify any use of race in admission decisions — the rationale the court endorsed in the Grutter decision. Diversity, Justice Sandra Day O’Connor wrote, encourages lively classroom discussions, fosters cross-racial harmony and cultivates leaders seen as legitimate. But critics say there is only a weak link between racial and academic diversity.
The Grutter decision allowed but did not require states to take account of race in admissions. Several states, including California and Michigan, forbid the practice, and public universities in those states have seen a drop in minority admissions. In other states and at private institutions, officials generally look to race and ethnicity as one factor among many, leading to the admission of significantly more black and Hispanic students than basing the decisions strictly on test scores and grades would.
A Supreme Court decision forbidding the use of race in admission at public universities would almost certainly mean that it would be barred at most private ones as well under Title VI of the Civil Rights Act of 1964, which forbids racial discrimination in programs that receive federal money. In her majority opinion in Grutter, Justice O’Connor said the day would come when “the use of racial preferences will no longer be necessary” in admission decisions to foster educational diversity. She said she expected that day to arrive in 25 years, or in 2028. Tuesday’s decision to revisit the issue suggests the deadline may arrive just a decade after Grutter.
The court’s membership has changed since 2003, most notably with the appointment of Justice Samuel A. Alito Jr., who replaced Justice O’Connor in 2006. Justice Alito has voted with the court’s more conservative justices in decisions hostile to government use of racial classification.
Chief Justice John G. Roberts Jr. has been particularly skeptical of government programs that take account of race. “Racial balancing is not transformed from ‘patently unconstitutional’ to a compelling state interest simply by relabeling it ‘racial diversity,’ ” he wrote in a 2007 decision limiting the use of race to achieve integration in public school districts.
Justices Alito, Antonin Scalia and Clarence Thomas agreed. Justice Anthony M. Kennedy, the court’s swing justice, also voted to invalidate the programs. But he was less categorical, sharply limiting the role race could play in children’s school assignments but stopping short of forbidding school districts from ever taking account of race. Still, Justice Kennedy has never voted to uphold an affirmative action program.
In Texas, students in the top 10 percent of high schools are automatically admitted to the public university system, a policy that does not consider race but increases racial diversity in part because so many high schools are racially homogenous. Ms. Fisher just missed that cutoff at her high school in Sugar Land, Tex., and then entered a separate pool of applicants who can be admitted through a complicated system in which race plays an unquantified but significant role. She sued in 2008.
Ms. Fisher is soon to graduate from Louisiana State University. Lawyers for the University of Texas said that meant she had not suffered an injury that a court decision could address, meaning she does not have standing to sue.
Ms. Fisher’s argument is that Texas cannot have it both ways. Having implemented a race-neutral program to increase minority admissions, she says, Texas may not supplement it with a race-conscious one. Texas officials said the additional effort was needed to make sure that individual classrooms contained a “critical mass” of minority students.
The lower federal courts ruled for the state. Chief Judge Edith Jones of the United States Court of Appeals for the Fifth Circuit, dissenting from the full appeals court’s decision not to rehear Ms. Fisher’s case, was skeptical of state officials’ rationale. “Will classroom diversity ‘suffer’ in areas like applied math, kinesiology, chemistry, Farsi or hundreds of other subjects if, by chance, few or no students of a certain race are enrolled?” she asked.
Justice Elena Kagan disqualified herself from hearing the case, presumably because she had worked on it as solicitor general.