Affirmative action on tap at the Supreme CourtMSNBC

Amy Howe2:05 PM on 06/02/201323

These are exciting times at the Supreme Court. Over the next month, the justices will be issuing decisions in several

historic cases. First up is likely to be a challenge to the constitutionality of affirmative action, Fisher v. University of

Texas at Austin. At issue in the case is the University of Texas’s use of race in deciding which undergraduates to admit.

In the Fisher case, the justices are tackling affirmative action for the first time in a decade. In 2003, the court ruled that

the University of Michigan Law School could consider race as one factor in its admissions process so that it could

create a diverse student body. But in those ten years, the High Court has changed: swing vote Sandra Day O’Connor

retired and was replaced by Justice Samuel Alito, who is much more suspicious of race-based programs.

The plaintiff in this new challenge is Abigail Fisher, who was denied admission to U.T. Austin in 2008. Fisher just

missed the cut-off for admission under Texas’s “Top Ten Percent Plan.” That program sought to foster racial diversity at

the school by automatically admitting any Texas high school student in the top ten percent of her graduating class.

Under the program, high schools with large minority enrollments sent many students to the university. To fill the

remaining admissions slots, the university considered a variety of factors—such as test scores, grades, work

experience, leadership qualities, and race.

A federal appeals court rejected Fisher’s constitutional challenge to the university’s admissions plan. It ruled that the

program was permissible under the Supreme Court’s earlier decision in the Michigan case.

The Supreme Court then agreed to weigh in, and the Obama administration joined the case to defend the university’s

program. Last October, the justices heard oral arguments.

The basic legal issue is how to interpret the Fourteenth Amendment of the Constitution, which forbids any State from

denying any person “the equal protection of the laws.” Everyone agrees that a key purpose of enacting the Amendment

in 1868 was to provide legal protection to African-Americans, including particularly newly freed slaves. In the past, it

was therefore not interpreted to prohibit affirmative action programs that are intended to benefit African-Americans. But

many conservatives point to the amendment’s neutral terms as evidence that it bans or limits all race-based programs.

They believe that the government should not enact racial classifications that they believe only continue the nation’s past

divisions.

The hearing before the Justices in Fisher left supporters of affirmative action with little cause for optimism. As expected,

the court’s most conservative members repeatedly challenged lawyers for the university and the federal government.

Questioning by the court’s new center vote—Justice Anthony Kennedy—suggested that he too had real doubts that the

university could justify its use of race, particularly given the diversity already created by the Top Ten Percent Plan. Ten

years ago, Kennedy had voted in dissent to strike down the affirmative action program in the Michigan case, and it

seemed from the recent arguments that his views had not changed.

As the justices prepare to issue their decision, supporters of affirmative action seem resigned to a loss in

the Fisher case. The question is how wide-ranging a decision the court will issue. Will it overrule the earlier Michigan

ruling and ban affirmative action in public universities altogether? Or will it instead issue a narrower decision limiting the

use of race to narrow circumstances?

The fact that the case has taken so long to decide indicates that the justices are continuing to debate the issue. There is

a real chance, in fact, that no one opinion will command a majority of five votes, with the Justices divided essentially into

three separate camps: a strong conservative faction that would all but ban affirmative action, a liberal wing that would

freely permit it, and the court’s center, led by Justice Kennedy, voting to limit programs like Texas’ but not forbid them

out right. If that is how the case turns out, then under the court’s procedures Kennedy’s position becomes the law.

Even after the Court decides the Fisher case, the legal wars over affirmative action will be far from over. Many other

questions will remain open. Lawsuits are sure to be filed against other universities’ admissions programs. Then the legal

principles developed in the case about the use of race will have to be applied to other forms of affirmative action, such

as government preferences for minority contractors. And even private universities with admissions preferences are

likely to be drawn into the fight, as students denied admissions claim that their rights under federal civil rights laws were

violated.

Stay tuned. The court next issues decisions at 10 a.m. Monday. The justices then return every week through the end of

June.

Amy Howe is the editor of SCOTUSblog.