On Tuesday, the Supreme Court agreed to hear a case over affirmative action for the first time since 2003, a potential signal that the court is willing to reverse some of its recent precedent concerning the controversial issue. The case, which originated in 2008 when a Texas student sued over the University of Texas in Austin over its policy of considering race in its admissions process, will be heard in October.
Texas’ top 10 policy admits the top ten percent of each graduating high school class, ensuring a higher proportion of minority students without considering race in admission. The program has been called “one of the most successful experiments ever tried to get more minority students into top public universities with race-neutral criteria.” But Texas considers race when admitting students below the top 10 percent, which is where applicant Abigail Fisher landed. She claims that while her grades were not good enough to qualify her for the top 10, they were still better than those of the minority students who were admitted ahead of her.
A lower court disagreed, basing its precedent on the Supreme Court’s 2003 ruling Grutter v Bollinger, which upheld, by a 5-4 margin, the ability for colleges to consider race in admissions only when they had a compelling interest to do so. Fisher is arguing that since Texas had already achieved diversity through its top 10 program, it had no interest in considering race over her application. (The Los Angeles Times has a more thorough rundown here.)
The Supreme Court has changed dramatically since 2003. The Grutter decision was argued by Sandra Day O’Connor, who has since retired and been replaced by some sort of Dickens character. The court now leans conservative, and Anthony Kennedy, who is known to be hostile to racial preferences, is the current swing vote. “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” Chief Justice John Roberts has said, showing his Bush-era propensity for mistaking the brevity of wit for the accuracy of analysis.
Given the current make up of the court, it seems that a partial or even full reversal could be in the works. However, given the specificity of Fisher’s case—which rests on Texas’ achievement of diversity in admissions, a tenuous argument and one not applicable to most of the nation—any changes the court makes might be narrow. (Then again.)
Since filing the suit, Fisher has attended LSU, where she at least saw some better football.
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