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The U.S. Supreme Court said Tuesday that it will revisit the divisive issue of affirmative action in higher education. The court agreed to hear arguments next fall in a case that challenges the affirmative action program at the University of Texas. By re-entering the fray after more than 30 years of settled law on the issue, the newly energized conservative court majority has signaled that it may be willing to unsettle much of that law.
Nine years ago the high court, by a 5-to-4 vote, reaffirmed a 1978 decision declaring that race can be one of many factors that may be considered in college admissions.
The author of that 2003 opinion, Justice Sandra Day O'Connor, said that while quotas are not permissible, "racial diversity is an essential part of higher education's mission," and thus race can be a plus factor, just like being the child of an alumnus can be a plus factor, or having athletic or musical talent.
But just two years after writing that landmark opinion, O'Connor retired and was replaced by Justice Samuel Alito, who has quite consistently been hostile to the idea of racial preferences in any form.
So when the Supreme Court decided on Tuesday to revisit the issue, the clear suggestion was that a new and far more conservative court majority may be prepared to reverse or severely cut back on more than three decades of precedent dealing with affirmative action in college and university admissions.
In addition to Alito, three other justices have been overtly antagonistic to the idea of affirmative action — Clarence Thomas, Antonin Scalia and Chief Justice John Roberts. In a 2007 opinion, Roberts wrote that racial balancing in schools "cannot be transformed into a constitutional practice by labeling it diversity," and diversity is precisely the objective of the Texas program at all levels, down to the classroom.
The fifth potential vote against Texas would be Justice Anthony Kennedy, who generally has taken a less hostile tone. Nonetheless, Kennedy has never voted to support a voluntary affirmative action program.
Making matters even more grim for supporters of affirmative action is the fact that only eight justices will hear the case. Justice Elena Kagan has recused herself because prior to her nomination to the court, when she served as solicitor general in the Obama administration, her office was involved in the case at the lower court level.
The Texas affirmative action program is something of a hybrid. Most of the student slots are allocated by formula. Students in the top 10 percent of a high school's graduating class get automatic admissions. Approximately 81 percent of the University of Texas slots were allocated this way nearly four years ago when the lawsuit was brought on behalf of a disappointed student named Abigail Fisher.
Fisher was not in the top 10 percent of her high school graduating class, and she claimed that she was disadvantaged by the system used to choose the remaining 19 percent of the students. That is where race is considered, along with grades, a personal essay, character, special talents and special circumstances, such as the socio-economic status of the student's family.
Fisher contended that because she had a higher grade point average than some of the minority students who were accepted, she was the victim of illegal discrimination. Two lower courts, however, disagreed, and upheld the university's affirmative action program.