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Supreme Court Could Rule That Using Race As a Factor in School Admissions is Unconstitutional

In a decision that is sure to toss even more political meat into the 2012 election arena, the Supreme Court on Tuesday announced that it would take another look at the use of race in college admissions.

The case of Fisher v. University of Texas centers on Abigail Fisher, a student from Sugar Land, Texas, who applied for and was denied admission to the University of Texas in 2007. Fisher claims that her test scores and grades "exceeded those of many of the admitted minority candidates,” and she sued alleging a violation of the equal protection clause.

The Texas university system makes clear that it does factor race into its admissions decisions, a consideration first called constitutional by a plurality of the Supreme Court in Regents of the University of California v. Bakke in 1978. Texas universities automatically admit students in the top 10% of their class on a race-neutral base and then supplement their student bodies with an admission process that does take race into consideration. This second program, Fisher alleges, violates the constitutional guarantee of equal protection.

While some states have explicitly banned the use of race in admissions decisions, the practice was upheld by a narrow 5-4 margin in 2003 in the case of Grutter v. Bolinger. There, the Supreme Court held that the use of race as a factor in admissions is constitutional, so long as no point or weight value is given to race in the consideration process.

The Court’s decision to review Fisher signals a potential sea-change in the legal posture the Court seeks to take on the issue of affirmative action. Five of the nine currently sitting justices have stated on the record that they are against the use of race as a factor in admission decisions and the decision to review Fisher suggests that they may be ready to put words to paper, reversing the long-standing acceptance of affirmative action programs upheld in Bakke and Grutter.

The balance of the Court has certainly shifted away from the more liberal leanings that helped spawn Bakke and Grutter. Grutter opinion author Sandra Day O’Connor has since been replaced by far more conservative Justice Samuel Alito and an expected member of the Court’s liberal wing, Justin Elena Kagan, will be taking no part in consideration of the case due to her prior work on the case as solicitor general.

The Roberts Court has also taken a more aggressive stance at eliminating programs that factor race into the decision-making process. In a 2007 decision concerning the use of race in determining integration programs in public schools, Chief Justice John Roberts wrote that “racial balancing is not transformed from ‘patently unconstitutional’ to a compelling state interest simply by relabeling it ‘racial diversity.’” He went on to conclude that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

The nature of the case in Fisher gives the Justices several options for potential outcomes. They could dodge the question entirely and rule that a university admissions program cannot have both an automatic race-neutral admissions policy and a subjective race-factoring admissions policy. They could declare programs that use race in admissions decision unconstitutional in situations where other, race-neutral programs, have achieved the stated goals of diversity and integration. Alternatively, the Court could attack the question directly, explicitly reversing Bakke and Grutter and declaring the use of race as a factor in admissions decisions unconstitutional.

Whatever their decision, the timing of the oral arguments in early October coincide with the closing days of the 2012 election, a fact that is sure to stir a fiery debate among politicians and pundits. The Court’s final ruling will likely come in early 2013, by which time Abigail Fisher will have graduated from Louisiana State University, where she ended up enrolling. Despite being unable to attend the school of her choice, Fisher’s name may very well become famous in the world of affirmative action policies and law.

Photo Credit: TexasGOPvote

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