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The US Supreme Court’s term began on 1 October 2012 today, and race relations is at the top of the court’s agenda. The US press hails Fisher v University of Texas as the most important case the Court has agreed to hear thus far. Word is out that it could sound the death knell for affirmative action in the United States.

The justices are being asked to decide whether race-based affirmative action in college admissions is still constitutional.  The petitioner is a white student who was turned down by the University of Texas in 2008. She claims she was a victim of illegal race discrimination under their policy of affirmative action.

In 1997 the Texas legislature enacted a law requiring the University of Texas to admit all Texas high school seniors ranking in the top ten percent of their classes.   Whilst this measure improved access to tertiary education for many, the colleges protested at having their hands tied with regard to highly talented students who showed promise in certain subjects but did not come in to the top ten percent (including minority students in highly integrated high schools).  To redress this balance the Supreme Court ruled in 2003 that universities could consider a minority student’s race as a “plus factor” in admissions. The Court based its ruling on the need for colleges to ensure a diverse student body. Following this judgment, the University of Texas added a new affirmative action policy to go along with the automatic admission rule  with race being a “plus factor” in admission.

Abigail Fisher did not graduate in the top 10 percent of her class. She instead competed for admission with other non-Top Ten in-state applicants, some of whom were entitled to racial preference as “underrepresented minorities.” Although Ms. Fisher’s academic credentials exceeded those of many admitted minority candidates, UT denied her application. Having “‘suffered an injury that falls squarely within the language and spirit of the Constitution’s guarantee of equal protection,’” Grutter v. Bollinger, 539 U.S. 306, 327 (2003), Ms. Fisher brought this challenge to the use of race in UT’s undergraduate admissions process seeking monetary and injunctive relief. After the District Court had rejected her case, Fisher brought suit in the federal court of appeals, challenging the constitutionality of the affirmative action policy she believed barred her admittance to the school.  The Federal Court  upheld the legality of UT’s policy, in a decision that sharply divided the Circuit bench. The appeal court justices warned that they could not “bless the university’s race-conscious admissions program in perpetuity”, and one of the dissenting judges went further in criticising the majority’s approval of the UT’s race policy when “a race-neutral state law (the Top Ten Percent Law) had already fostered increased campus racial diversity,” and by validating UT’s “unachievable and unrealistic goal of racial diversity at the classroom level to support the University’s race-conscious [admissions] policy.”

The petitioner relied on the Fourteenth Amendment of the US Constitution which requires an admissions process untainted by racial preferences absent a compelling, otherwise unsatisfied, government interest and narrow tailoring to advance that interest without undue infringement on the rights of non-preferred applicants

In the petition to the Supreme Court urging them to overturn the decision below, Ms Fisher reminds the Court  it  had never made any decision which has

“ever suggested that a state university has a compelling interest in using race to further general welfare. By recognizing that interest, the Fifth Circuit went far outside this Court’s nuanced delineation of the permissible goal of student body diversity . . . 

“Whether a public university can layer racial preferences over a non-racial admissions plan that ensures very substantial levels of minority enrollment is a question which itself warrants review by this Court.”

In an unbroken line of decisions, this Court has held that governmental racial classifications demand “the most exacting judicial examination,” a “rule [that] obtains with equal force regardless of the race of those burdened or benefited by a particular classification.”

Although it has generally upheld the constitutionality of affirmative action, the Supreme Court’s approach to the use of race by the government has changed in recent years. According to the Adam Winkler in the Daily Beast, the arrival of Chief Justice John Roberts has had a significant was summed up in a 2007 ruling which invalidated two laws designed to ensure that public high schools were racially diverse.

“The way to stop discrimination on the basis of race,” the chief justice wrote pithily, “is to stop discriminating on the basis of race.” Court watchers expect this colorblind view of the Constitution to prevail again and UT’s policy to be invalidated. The only question is whether the justices will use the opportunity to overturn decades of precedent and declare an end to all race-based affirmative-action policies by colleges and universities.”

And Reuters suggests that changes in the Supreme Court’s makeup may imperil the 2003 decision Grutter v. Bollinger, that let universities take race into account to improve diversity. Justice Sandra Day O’Connor, who in that case endorsed race-based admissions at the University of Michigan law school, retired in 2006 and was replaced by the more conservative Justice Samuel Alito.

The LA Times quotes Edward Blum, an activist against affirmative action who launched Fisher’s suit, who believes the success of UT’s automatic admissions policy will show the Supreme Court that race-based policies are no longer needed.

“Using a student’s race to give him an advantage or disadvantage strikes most Americans as wrong”, he said. “They are creating more diversity through the top 10% policy, and every black and Hispanic student can say, ‘My race was not a factor in my admission.’”

This post originally appeared on the UK Human Rights Blog and is reproduced with permission and thanks.

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