The justices could rule there is no justification for race-based affirmative action when universities have achieved diversity through a top-10 policy. Or they could rule more broadly and forbid colleges and universities that receive public funds to consider race in admissions.
BY DAVID G. SAVAGE | MCCLATCHY NEWSPAPERS
WASHINGTON — Since the retirement of Justice Sandra Day O’Connor, conservatives have looked forward to the day when the Supreme Court would take up a new challenge to the use of race-based affirmative action in the nation’s colleges and universities.
That day came Tuesday, when the justices announced they would hear an appeal from a disappointed white student from Texas who seeks an end to “racial preferences” in the admission process.
Her appeal is likely to have national significance, potentially as the case that brings to an end the Supreme Court’s more than three decades of decisions allowing affirmative action in admissions.
The Supreme Court first approved affirmative action in higher education in the Bakke case in 1978. A generation later, in 2003, O’Connor wrote the court’s decision reaffirming the practice, saying in a case involving the University of Michigan that colleges and universities could have limited racial preferences in order to achieve diversity on campus. At the time, O’Connor suggested that after another 25 years, if racial prejudice continued to wane, such preferences would no longer be defensible.
But the end may come faster. Now that O’Connor has been replaced by Samuel A. Alito Jr., five justices — a majority — are on record against the use of “racial balancing” by schools. “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” Chief Justice John G. Roberts Jr. said five years ago in a decision that prohibited race-based transfer policies in elementary and high schools.
The ruling in the Texas case will have a limited effect in California. In 1996, the state’s voters outlawed “preferential treatment” by race with Proposition 209.
Because the court’s calendar is filled through the spring, the justices will not hear arguments in the case until October, weeks before the presidential election. Justice Elena Kagan said she would not participate, apparently because she worked on a Justice Department brief when the case was in a lower court.
The pending case could prod President Barack Obama to spell out his views on race and affirmative action in the middle of the presidential campaign.
When he first ran for president in 2008, Obama gave mixed signals on the issues. He said he saw a continued need for affirmative action to make up for a history of discrimination, but he said it should be limited to students who truly deserve extra help. He pointed to his own daughters as “pretty advantaged,” and added, “I think we should take into account white kids who have been disadvantaged and have grown up in poverty and shown themselves to have what it takes to succeed.”
Texas opted for just such an approach in 1997 after a federal court struck down its race-based affirmative action policy. The state adopted a “top 10” policy that said high school seniors in the top 10 percent of their classes would be admitted to the University of Texas, Austin. The goal was to maintain racial and ethnic diversity without using race as a factor in the admissions process. White students from lower-income neighborhoods benefited as well.
The plan appeared to work. By 2004, 21 percent of the entering students at the Austin campus were black or Latino, a higher percentage than when the university had used race-based affirmative action. Other states, including California and Florida adopted similar plans after voters or state officials limited the use of affirmative action.
But shortly after the Michigan ruling in 2003, Texas officials announced they would revert to using race as a plus factor for “underrepresented minorities.”
Texas now uses both policies. About three-fourths of its new students graduated in the top tier at their high schools. The remaining fourth are selected in a process that weighs race as one factor. In 2007, the Austin campus said it had a “record high” number of entering black and Latino students, making up about 26 percent of the freshman class.
The next year, Abigail Fisher from Sugar Land, Texas, was turned down for admission. Her grades were not good enough to put her in the top 10 percent of her class, but she said her tests and grades “exceeded those of many of the admitted minority candidates.” She sued, alleging racial discrimination in violation of the Constitution’s guarantee of equal protection of the laws.
Fisher’s claim was rejected by a federal judge and the 5th U.S. Circuit Court of Appeals, sending it to the Supreme Court. While the lawsuit was pending, Fisher enrolled at Louisiana State University; she is due to graduate this spring.
Texas university officials had urged the court to turn away the appeal, but said they would “vigorously” fight the suit. “The university is firmly committed to a holistic admissions policy that is narrowly tailored to achieve the educational benefits of a diverse student body,” University of Texas President Bill Powers said in a statement.
The justices could rule there is no justification for race-based affirmative action when universities have achieved diversity through a top-10 policy. Or they could rule more broadly and forbid colleges and universities that receive public funds to consider race in admissions.