The United States Supreme Court decided this week to review the constitutionality of a race-conscious admissions policy at the University of Texas at Austin. The Court’s acceptance of this case, Fisher v. University of Texas at Austin, could result in a fundamental shift of existing constitutional standards that have allowed public and private higher education institutions to promote diversity of their student bodies through the consideration of race (among other factors) for more than a generation.
As first determined in 1978 and reaffirmed relatively recently in a pair of Supreme Court decisions in 2003 involving the University of Michigan, existing law allows colleges and universities to use race as one of several diversity factors in admitting students. Although one of the Court’s 2003 decisions, Grutter v. Bollinger, predicted that consideration of race may not be necessary to achieve diversity among students after another 25 years, the Fisher case offers the Court an opportunity to re-examine that standard less than 10 years after deciding Grutter.
Proponents of affirmative action have two primary reasons to suspect that the Court could adopt a new standard that reduces or even prohibits consideration of race in admissions. First, the Court chose to review this case despite the absence of any split in authority from the various circuit courts of appeal that have applied the Grutter standards. Second, the Court’s composition has changed in meaningful ways since Grutter, which was a closely decided, 5-to-4 ruling. The author of that decision, Justice Sandra Day O’Connor, has retired. Her replacement, Justice Samuel Alito, has been critical of the use of affirmative action. Chief Justice Rhenquist also left the bench after 2003, succeeded by Chief Justice John Roberts, who has since penned a decision expressing skepticism about race-conscious policies in the context of desegregation of public school districts. Although another recent addition to the Court, Justice Elena Kagan, is viewed as a potential proponent of affirmative action, she has recused herself from participating in this case because of her prior involvement at lower court stages on behalf of the Obama administration (in her former role as Solicitor General).
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