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Affirmative Action on scotus Chopping Block

Supreme Court Agrees to Hear Affirmative Action Case

By ADAM LIPTAK February 21, 2012

WASHINGTON — The Supreme Court on Tuesday agreed to hear a major case on affirmative action in higher education, adding another potential blockbuster to a docket already studded with them.

The court’s decision in the new case holds the potential to undo an accommodation reached in the Supreme Court’s 5-to-4 decision in 2003 in Grutter v. Bollinger: that public colleges and universities could not use a point system to boost minority enrollment but could take race into account in vaguer ways to ensure academic diversity.

Justice Sandra Day O’Connor, who wrote the majority opinion in Grutter, said the accommodation was meant to last 25 years.

The court’s membership has changed since 2003, most notably for these purposes with the appointment of Justice Samuel A. Alito Jr., who replaced Justice O’Connor in 2006. Justice Alito has voted with the court’s more conservative justices in decisions hostile to the use of racial classifications by the government.

“There thus seem five votes — Roberts, Scalia, Kennedy, Thomas and Alito — to overrule Grutter and hold that affirmative action programs are unconstitutional,” Erwin Chemerinsky, dean of the law school at the University of California, Irvine, wrote in a recent book, “The Conservative Assault on the Constitution.”

Chief Justice John G. Roberts Jr. has been particularly skeptical of government programs that take account of race. “Racial balancing is not transformed from ‘patently unconstitutional’ to a compelling state interest simply by relabeling it ‘racial diversity,’ ” he wrote, for instance, in a 2007 decision limiting the use of race to achieve integration in public schools.

Justices Alito, Antonin Scalia and Clarence Thomas agreed. Justice Anthony M. Kennedy, the court’s swing justice, was less categorical. But he has never voted to uphold an affirmative action program.

The new case, Fisher v. Texas, No. 11-345, was brought by Abigail Fisher, a white student who said she was denied admission to the University of Texas because of her race. The case has idiosyncrasies that may limit its reach, but it also has the potential to eliminate diversity as a rationale sufficient to justify any use of race in admissions decisions.

Students in the top 10 percent of Texas high schools are automatically admitted to the public university system. Ms. Fisher just missed that cutoff at her high school in Sugar Land, Tex. She sued in 2008, challenging the way the state allocated the remaining spots using a complicated system in which race plays an unquantified but significant role.

Ms. Fisher is soon to graduate from Louisiana State University. Lawyers for the University of Texas said that meant she had no standing to sue, an issue that the justices must now consider.

Ms. Fisher’s argument on the merits is that Texas cannot have it both ways. Having implemented a race-neutral program to bolster minority admissions, she says, Texas may not supplement it with a race-conscious one.

Texas officials said the additional effort was needed to make sure that individual classrooms contained a “critical mass” of minority students.

Justice Elena Kagan disqualified herself from hearing the case, presumably because she had worked on it as solicitor general. Arguments in the case will be heard during the court’s next term, which starts in October.

http://www.nytimes.com/2012/02/22/us/justices-to-hear-case-on-affirmative-action-in-higher-education.html?hp=&adxnnl=1&adxnnlx=1329854428-SFwYWwcOF0jRfXnKMjF2qA

DETAILS here, with embedded links __Affirmative action review due next Term

Returning for the first time in nine years to the ongoing controversy over the use of race in public college admissions, the Supreme Court on Tuesday agreed to review the constitutionality of a broad affirmative action program used to admit the freshman class at the University of Texas at Austin. Because the Court’s order did not put the case on an expedited schedule, it will go over for argument in the next Term, starting October 1. Filing of written briefs, however, will occur over the summer, while the Justices are in recess. The case is Fisher v. University of Texas (docket 11-345).

The Court’s decision will be made by an eight-Justice Court, since the newest member, Justice Elena Kagan, has disqualified herself. She was the U.S. Solicitor General in March 2010, when the Justice Department filed a brief in this case in the Fifth Circuit Court. The Solicitor General must approve government filings in courts at that level. Kagan was nominated to the Court in May 2010.

The University of Texas adopted the admissions plan at issue in the case soon after the Supreme Court in 2003, in the case of Grutter v. Bollinger, ruled that the University of Michigan Law School could use race as one of the factors in helping to achieve racial diversity in that public institution. But the Texas plan goes considerably further than seeking diversity across the entering class of students; the plan also seeks to achieve that goal among the major fields of study, and at the classroom level. That extension of what might be called the “Grutter principle” of diversity is a key issue in the case taken to the Court by Abigail Noel Fisher, a Sugar Land, Texas, student who did not gain admission to the Texas campus and contended in her lawsuit that she was denied because she is white. Minority students with lower grade averages than hers got in under the plan, she has contended.

As the case reached the Supreme Court, it was primarily a claim that the current admissions policy is unconstitutional as a form of “blatant racial balancing.” But Fisher’s lawyers argued that, if the Texas plan satisfies the Supreme Court’s analysis in the Grutter decision, then the Court should reconsider that ruling. That is an issue that will loom over the case as it moves through the Court’s review.

University officials made a strenuous but unsuccessful effort to persuade the Supreme Court not to hear Fisher’s case. They noted that she had gone to college at another school, Louisiana State University, and had now graduated, so she would not again be seeking admission as a freshman at Austin. Moreover, the university’s lawyers contended that little was at stake in the case for Fisher, because she was seeking only $100 in refund of fees she paid when she applied for admission. The university could refund the fees, and make the case moot, the attorneys contended. Fisher’s lawyer, however, countered that she is still seeking nominal damages for the harms she claimed she suffered in being denied admission to the university.

The University of Texas has played a prominent role in the modern dispute over race in college admissions. An earlier program that made explicit use of race was struck down by the Fifth Circuit Court in 1996, in the case of Hopwood v. Texas. Minority enrollment at the state’s flagship university then started dropping. In 1997, the Texas legislature reacted by enacting what is called the “Top Ten Percent Law.” Under that, any Texas state university was required to admit automatically a student who had finished in the top ten percent of the class in a Texas high school. That part of the policy is still in effect today, and it accounts for a majority of actual admissions each year. The plan also had the practical effect of increasing minority enrollment more than that of white applicants.

Still, the university decided to go further, following the Grutter ruling and the permission it appeared to grant for a renewed use of race as one factor in an admissions policy. The plan had the intended effect: vaulting the university into sixth place nationally in producing undergraduate degrees for minority students. The plan reached below the university level, also requiring efforts to increase minorities among major academic disciplines and within classrooms. The plan was upheld in U.S. District Court, and then on appeal by the Fifth Circuit. The en banc Circuit Court split 9 to 7 in refusing to reconsider the plan’s constitutionality.

http://www.scotusblog.com/2012/02/affirmative-action-review-next-term/#more-139196