The United States Supreme Court has decided to revisit its 2003 ruling on affirmative action in state colleges and universities. On February 21, 2012, the Court granted certiorari in Fisher v. Texas, a case brought by a white student, Abigail Fisher, who applied for admission to the University of Texas but was denied admission.
In 2003, the Court, by a 5-4 margin, upheld in Grutter v. Bollinger the University of Michigan Law School’s use of race as a factor in admitting minority applicants. See our General Memorandum 03-89 of June 27, 2003. The Court held that Michigan’s consideration of race in the admissions process did not violate the Fourteenth Amendment’s guarantee of equal protection. Using the strict scrutiny standard of review, the Court held that attaining a diverse student body is a compelling state interest, and that Michigan’s system achieved that goal by a narrowly tailored means.
Since 2003, however, the Supreme Court’s composition has changed. The key vote in Grutter was provided by Justice Sandra Day O’Connor who retired from the Court and was replaced by Justice Samuel Alito. Both Alito and Chief Justice John Roberts (who was not on the Court in 2003) have been critical of the use of race in admissions. Justice Elana Kagan has recused herself from the Fisher case because of her earlier participation as Solicitor General. Justices Antonin Scalia, Clarence Thomas, and Anthony Kennedy voted against the use of race in Grutter and remain on the Court. That leaves the possibility of a 5-3 vote to overturn the Grutter decision.
The University of Texas uses a hybrid admission system. Fisher did not qualify for admission under the race neutral “top ten” rule that admits Texas high school students in the top ten percent of their class. Eighty-one percent of Fisher’s class was admitted under the top ten rule. Fisher also failed to qualify for general admission. The University weighs an applicant’s academic performance and personal achievements like leadership, community service, work experience, and family status. Following the Grutter decision, the University includes race in the personal achievement measures.
Fisher’s claim that the use of race in the personal achievement measures violates the Fourteenth Amendment was denied by the lower courts. Fisher also claims that the University’s top ten system has boosted minority admissions and the use of race for general admission is unnecessary.
Should the Court reverse Grutter, the decision would likely affect many Native American students seeking admission to state universities, law schools, and other institutions.
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