Affirmative Action in College Admissions Goes Back before Supreme Court

Article excerpt

US Supreme Court is taking an affirmative action case about the University of Texas admissions policy, which permits race to be a factor in deciding which applicants are admitted.

The US Supreme Court agreed on Tuesday to take up a potential blockbuster case testing the constitutionality of race-based admissions policies at the University of Texas.

The case, Fisher v. University of Texas (11-345), is being closely followed by conservative analysts who are hopeful the high court will use the Texas dispute to establish new constitutional limits on race-conscious affirmative action plans at public colleges and universities nationwide.

In announcing it would take up the case, the court also said Justice Elena Kagan would not take part in deciding the dispute. Before joining the high court, Justice Kagan served as solicitor general in the Obama administration.

Although it is unclear precisely when the case will be set for oral argument, the action brings the politically divisive issue of race to the high court in a presidential election year in which the nation's first African-American president is seeking a second term in the White House.

The Supreme Court is being asked to reverse a lower court decision upholding the use of race in the University of Texas admissions program.

At the heart of the underlying lawsuit is whether the university violated the equal protection clause of the 14th Amendment by using race as a factor in deciding which student applicants to admit and which to reject.

Abigail Fisher, who is white, applied but was denied admission to the university in 2008. In her lawsuit she alleges that her academic credentials were superior to many African-American and Hispanic candidates who were admitted after receiving preferential consideration by admissions officers because they were deemed to be "underrepresented minorities."

Lawyers for the university defended the school's use of race in admissions, saying it is narrowly tailored to help the university achieve a critical level of diversity. They said the program was patterned on the affirmative action plan used at the University of Michigan Law School that was upheld by the Supreme Court in 2003.

The high court ruled for the first time in the Michigan case that student diversity could be a compelling interest justifying a state university's use of race as one of many factors in admissions.

The University of Texas had maintained a race-conscious affirmative action plan until 1996, when a federal appeals court panel ruled that the use of race in admissions was unconstitutional. The state legislature responded by enacting the Top Ten Percent Law, which requires the University of Texas to admit the top 10 percent of graduates from each high school in Texas.

The law significantly boosted the level of minority enrollment at UT without any reliance on race as a factor in admissions. By 2004, black and Hispanic students comprised 21.4 percent of the incoming freshman class.

Nonetheless, in the wake of the Supreme Court's decision in the Michigan case, Texas officials in 2004 decided to create a supplemental admissions program using race as one of several factors. It is that supplemental program that is being challenged by Ms. Fisher and her lawyers.

Fisher argues that the Top Ten Percent Law provides an effective means to boost minority enrollment without resorting to race- conscious admissions measures that are unfair to individual students and unconstitutional.

The university says its use of race as a selection criterion is necessary to achieve its goal of a minority student population in the same proportion as the minority population in Texas.

In addition, they say the school is trying to reach a critical mass of minority students in each classroom. That goal means the school is striving to admit enough qualified minority students to ensure there are more than two black and/or Hispanic students in every class for every subject taught at the university. …

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