The U.S. Supreme Court has agreed to hear the case of a Michigan law that would ban practices of affirmative action in the state for university admissions and government contracting. The court has agreed to listen to this case prior to issuing a decision on Fisher v. University of Texas at Austin, which was argued last fall.
Court watchers believe this move indicates that a decision in the University of Texas case is to come soon, or the justices remain split in their decision. Justice Anthony Kennedy appears to be the swing vote in Fisher, as he has argued both for narrowly-crafted affirmative action laws and racially diverse campuses.
Two prior cases heard by the Supreme Court could be telling in how the court will rule when it hears the case of the ban on affirmative action.
In Grutter v. Bollinger, the University of Michigan Law School's affirmative action policy was challenged. The court found that because the law school had a "narrowly tailored" use of race in admissions decisions, the Fourteenth Amendment's Equal Protection Clause was not violated when the school considered race in its admissions process.
That same year in Gratz v. Bollinger the university's undergraduate admission practices were found to be in violation of the Equal Protection Clause due to the fact the university would automatically distribute points to "every single underrepresented minority" exclusively because of race, then it would look at student applications. The court found that that practice violated the original precedent established in the 1978 decision University of California Regents v. Bakke.
In Bakke, Associate Justice Lewis Powell concluded in Bakke that the qualifications of the individual should be examined, and race would be considered a plus factor and not simply to fill quotas. Powell argued that the "nation's future depends on leaders trained through a wide exposure to ideas and mores of students as diverse as the nation." The admission policies for the University of Michigan's undergraduate program in question in Gratz did not hold up under Powell's definition.
Court precedent would indicate that future decisions for affirmative action will be decided similarly, if there is evidence that decisions are made first to fulfill a quota, then to assess the individual applicant, those actions will not be upheld.