n 2003, Justice Sandra Day O'Connor wrote a landmark decision upholding the use of race in picking whom to admit to universities and graduate programs, and predicted that the ruling would stand for at least 25 years. On Tuesday, the Supreme Court cast doubt on O'Connor's forecast by accepting an affirmative action case from a white student at the University of Texas at Austin. The Roberts Court will probably hear college student Abigail Fisher's discrimination claim in October, just a few weeks before a heated presidential election — and the outlook is somewhat grim for affirmative action proponents. Here, a look at Fisher v. University of Texas:
Why is Abigail Fisher suing the University of Texas?
Fisher, a white student, was denied admission to the University of Texas in 2008, and says that her grades were better than those of some accepted minority students. Getting passed over violated her rights under the 14th amendment, Fisher's lawyers argue, since Fisher was owed an "admissions process untainted by racial preferences absent a compelling, otherwise unsatisfied, government interest." UT would achieve its desired racial balance, Team Fisher says, simply through its race-neutral "Top Ten" policy, which automatically lets in all Texas students in the top 10 percent of their graduating class. (Fisher herself wasn't in the top 10 percent.)
Would the Top Ten program promote racial diversity?
Yes, to some extent. The state legislature implemented the policy in 1997, and the Top Ten program actually increased diversity. By 2004, 21 percent of new UT students were black or Latino. UT reinstated race as a factor for the applicants who didn't make the 10 percent cutoff — Fisher's group — after the Supreme Court's 2003 ruling, and by 2007, black and Latino students made up 26 percent of the freshman class.
What is the Supreme Court precedent?
The Supreme Court first gave its blessing to affirmative action in higher education in 1978, in a 5-4 decision. In the 2003 case, Grutter v. Bollinger, the court upheld the precedent, ruling 5-4 that the University of Michigan law school could use race as a factor in admissions in order to achieve a racially diverse student body. Fisher's lawyers are specifically asking the court to reconsider its decision in Grutter.
How is the high court likely to rule this time?
Only eight justices will decide Fisher v. Texas — Justice Elena Kagan is recusing herself due to previous involvement as U.S. solicitor general — and court watchers are expecting a 5-3 decision in favor of Fisher, and against affirmative action. Chief Justice John Roberts and Justices Samuel Alito, Anthony Kennedy, Clarence Thomas, and Antonin Scalia are all on record opposing "racial balancing" policies.
Will this spell the end to affirmative action?
Quite possibly. But the details largely depend on Kennedy, who typically serves as a swing vote on the divided Roberts Court. Kennedy has never seen a race-based admissions program he liked, says Andrew Cohen at The Atlantic. So you can expect that "50 years or so after black students couldn't get admitted to Southern universities because of the color of their skin, the Supreme Court is poised to end, or at least dramatically limit, affirmative action in higher education." Hold on, says Mike Sacks at The Huffington Post. Kennedy may not be willing to go as far as his conservative peers. He will likely "use his crucial fifth vote" to spoil the conservative bloc's attempts to "end affirmative action once and for all," instead keeping it "constitutional in theory, but almost impossible to pursue in practice."
But should the court kill affirmative action?
Both sides say the expected ruling would significantly reduce the number of black and Latino students at just about every selective university, and increase the number of white and Asian students. And that's just fine, conservative legal scholar Hans von Spakovsky tells The New York Times. "Any form of discrimination, whether it's for or against, is wrong." Are you kidding? Columbia University President Lee Bollinger tells The Times. The Supreme Court is about to "undo several decades of effort within higher education to build a more integrated and just and educationally enriched environment." Maybe we just need a new kind of affirmative action, says Richard Kahlenberg at Slate. If the Supreme Court strikes down the race-based kind, schools ought to consider "class-based affirmative action," giving preference to low-income and working-class students, regardless of their race.
THE WEEK'S AUDIOPHILE PODCASTS: LISTEN SMARTER
Subscribe to the Week