Supreme Court to Tackle Affirmative Action in High Profile Texas Case
Sep 19, 2012
By Kristen Friend, staff writer – September 19, 2012.
When the Supreme Court reconvenes in October, it will hear a case that could determine the fate of affirmative action policies nationwide. At question is a controversial University of Texas admission standard that includes race as a factor when evaluating applicants.
The Court has historically given broad leeway to universities, recognizing the value of academic freedom and allowing officials to construct policies they feel are best for their schools. This flexibility includes the ability to employ guidelines that attempt to increase minority populations on campus. However, changes in the makeup of the Court since its most recent decision on affirmative action are causing some to speculate that this latitude may be curtailed.
Affirmative action policies aim to increase the representation of women and minorities in areas from which these groups have been historically shut out. The underlying principle is that an increase in diversity in schools or workplaces enhances the environment for everyone involved. Supporters believe affirmative action helps to level the playing field for all individuals, while detractors believe it is merely a form of thinly veiled discrimination.
Modern affirmative action policies differ from quota systems, which were ruled unconstitutional in 1978 with the Supreme Court’s decision in Regents of the University of California v. Bakke.  Subsequent cases have upheld the constitutionality of such policies only if they use race as a single factor in a holistic view of individual candidates.
The case now coming before the Court is the latest in a decades-long battle over affirmative action. At the heart of the matter is the method by which the University of Texas at Austin uses race when evaluating applicants.
Since 1997, the Texas university system has operated under the Top Ten Percent Law. The law guarantees admission to any state university to all students who graduate in the top ten percent of their class. 
The Ten Percent Rule was intended to increase the diversity within Texas schools, without relying on affirmative action. When the policy was first implemented, affirmative action was illegal in Texas, Mississippi and Louisiana, due to a Fifth Circuit court decision.
Over the past fifteen years, the law has received mixed reviews. The guaranteed admission stipulation has reduced the number of spaces available for other students competing for acceptance, particularly at the system’s flagship schools. In 2008, Ten Percent admissions accounted for 81 percent of incoming freshmen at UT Austin. 
While affirmative action was illegal in states falling under the jurisdiction of the Fifth Circuit, it remained constitutional throughout the rest of the country. In 2003, the Supreme Court heard the case Grutter v. Bollinger, which involved a challenge to the use of affirmative action by the University of Michigan Law School.
In Grutter, the Court upheld the constitutionality of the school’s admissions policy – with stipulations. While the justices gave the University of Michigan leeway in making determinations about its academic practices, it upheld the legality of only a limited use of affirmative action.  The majority agreed that an institution’s affirmative action policy could only withstand strict scrutiny under the Equal Protection Clause if it used race as a part of a comprehensive evaluation of each candidate individually and did not create a quota system.
The Court accepted the University of Michigan’s supposition that there was a compelling state interest in achieving a “critical mass” of students from minority populations. All students benefited, the school argued, from diversity that, “has the potential to enrich everyone’s education and thus make a law school class stronger than the sum of its parts.” 
One important aspect of the Grutter decision is the Court’s deference to the University’s decision-making process. Sandra Day O’Connor, in her opinion for the majority, wrote, “We have long recognized that, given the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition.” 
Some who fear the overturn of Grutter wonder if the decision could have more far reaching consequences in the area of academic freedom. 
According to Oberlin College President Marvin Krislov, the prospect is alarming. “We are very worried that an adverse decision could impair the ability to enroll a diverse student body, and I suspect that that would be felt at other selective colleges and universities,” Krislov said. 
The Supreme Court’s decision in Grutter abrogated the ruling of the Fifth Circuit, once again making affirmative action legal in Texas. In the wake of the decision, the University announced it would adopt updated admissions standards that would once again take an applicant’s race into account.
School officials saw an enhanced opportunity to advance diversity on campus through the admission of historically underrepresented minorities, most specifically Hispanics and African-Americans. The goals for increased minority representation were based upon comparisons to the makeup of minority populations statewide. In the new policies, race was adopted as an explicit factor in a coding system that determined the eligibility of students who were not automatically accepted through the Ten Percent Rule. 
The school’s new standards went beyond the objective of increasing the diversity of the student body as a whole. The University aimed to tailor admissions in such a way as to boost diversity at the department and classroom level as well.
Abigail Noel Fisher, a white resident of Texas, applied to the University of Texas in 2008 and was denied admission. She sued the university, claiming that the school’s affirmative action policies were discriminatory. Fisher argued that minority students with less impressive credentials were admitted in her stead, causing her to be excluded simply because of her race.
A federal District judge and the Fifth Circuit Court of Appeals both sided with the University of Texas. The lower courts, in applying the Grutter precedent, found that they should defer to university officials who were attempting “in good faith”  to increase racial diversity for the benefit of their schools. The Supreme Court took the case on appeal.
In their petition to the Court, Fisher’s attorneys have asked the justices to determine, “Whether this Court’s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Grutter v. Bollinger, 539 U.S. 306 (2008), permits the University of Texas at Austin’s use of race in undergraduate admissions decisions.” 
Fisher believes that the University of Texas’s admission guidelines go beyond the limited use affirmative action allowable under Grutter. She argues that the school’s attempt to impact the makeup of the student population at all levels is particularly egregious and discriminatory, saying, “The pernicious impact of aspiring to or measuring ‘diversity’ at the classroom level seems obvious upon reﬂection.” 
Fisher also contends that the University’s Top Ten Percent Rule has fulfilled the school’s goal of increasing student diversity and that consideration of race in addition to that policy is exactly the type of racial balancing that the Court said would be prohibited under Grutter. 
At the end of her brief, Fisher also implies that even if the Court finds the policy to be acceptable under Grutter, it is still unconstitutional. This sets up a debate over whether any affirmative action is allowable under the Equal Protection clause.
The justices could rule narrowly, finding the University of Texas’s policies to be unconstitutional (or legal) under existing precedent. In this case, the justices may find that school’s use of affirmative action violates the principles laid out in Grutter, but it would still remain intact as the law of the land.
The Court could also rule more broadly and find that UT’s policy is unconstitutional regardless of its legality under Grutter. In this case, Grutter would likely be overturned, striking down affirmative action policies nationwide.
Given the makeup of the Court, it appears that affirmative action may be in serious trouble.
Justice Elena Kagan will not hear the case, leaving the eight remaining justices to decide the future of affirmative action. However, those opposed to affirmative action policies will still need 5 votes to overturn the law. In the case of a 4-to-4 tie, the lower court’s decision remains intact. 
Justices Scalia, Thomas, Kennedy and former Chief Justice Rehnquist all dissented in Grutter, while Justices Ginsburg, and Bryer concurred. The chief justice position has passed from one conservative to another. But Bush appointee Samuel Alito, who is less likely to uphold the constitutionality of affirmative action policies, has replaced Justice Sandra Day O’Connor.
According to Richard Kahlenberg, the author of The Remedy: Class, Race and Affirmative Action, if schools are forced to end affirmative action policies, the results may not me as dire as officials anticipate. Kahlenberg says it would force universities to consider other issues related to diversity, like class. “Right now, universities don’t do that. They don’t consider socioeconomic status in admissions even though they say they do,” said Kahlenberg. “At selective colleges, you are 25 times as likely to run into a rich kid as a poor kid.” 
Many outside groups have filed briefs for both parties. Seventeen briefs have been filed in support of Fisher and seventy-three have been filed on behalf of the University of Texas. Those who have filed briefs in support of Fisher include the Cato Institute, the Texas Association of Scholars, the Southeastern Legal Association and the Center for Individual Rights. Those who have filed on behalf of UT include the United States Justice Department, the Anti-Defamation League, the American Bar Association, Members of Congress, the NAACP and several colleges and universities. 
The case is Fisher v. University of Texas at Austin. Oral arguments are scheduled for October 10, with a decision following sometime in 2013.