University Affirmative Action Gets U.S. Supreme Court Review

Supreme Court Justices Issue Term's Last Rulings

The U.S. Supreme Court will consider putting new limits on the use of racial preferences in college admissions, agreeing to scrutinize an affirmative action policy at the University of Texas for the second time.

The justices Monday agreed to hear an appeal from Abigail Fisher, a white woman who said she suffered unconstitutional discrimination when she was rejected by the school in 2008. The case will test a policy that Texas says is crucial for ensuring a diverse campus.

The appeal gives the court’s conservative wing a second chance at a case that produced a compromise two years ago. The Supreme Court under Chief Justice John Roberts has been resistant to racial classifications. The court will take up the case during the nine-month term that starts in October.

“The outcome of this case may bring our nation closer to the day when a student’s race and ethnicity is not a factor that a school may consider during the admissions process,” said Edward Blum, director of the Project on Fair Representation, which is behind Fisher’s lawsuit.

The 7-1 ruling in 2013 left intact the core right of universities to consider the race of people seeking admission while giving opponents a new tool to attack programs as unwarranted. The justices told a lower court to give the policy tougher scrutiny and assess whether the university could achieve diversity without directly considering race as an admissions factor.

The appeals court reconsidered the dispute last year and upheld the program for a second time.

Hybrid Policy

Texas’s flagship Austin campus has an unusual hybrid admissions policy. The state’s Top Ten Percent Law, enacted in 1997 in response to a court decision, requires the school to admit three-quarters of its freshman class each year solely on the basis of high school class rank.

That system, while race-neutral on the surface, ensures a significant number of minorities because it guarantees slots to students at predominantly Hispanic and black schools.

The university directly considers race as a factor only in admitting the rest of the class. Texas says that step provides an additional component of diversity and brings in different types of minority students, including those who attended integrated schools and weren’t automatically admitted under the Top Ten Percent Law.

“Ensuring a diversity of backgrounds within -- as well as among -- racial groups is one of the best ways to help break down racial stereotypes and promote cross-racial understanding,” Texas argued.

‘Narrowly Tailored’

The university’s president, Gregory L. Fenves, said in a statement after the court acted that “our admissions policy is narrowly tailored, constitutional, and has been upheld by the courts multiple times.”

Fisher says the university’s pursuit of diversity is too vague an interest to justify the use of race. She also says the university hasn’t provided evidence that its preferences did anything to advance that goal.

The lower court ruling “is a recipe for endless racial preferences,” Fisher’s lawyers argued in their appeal.

The Project on Fair Representation, based in Alexandria, Virginia, is also pressing lawsuits over affirmative action programs at Harvard University and the University of North Carolina.

The case is Fisher v. University of Texas at Austin, 14-981.

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