Updated October 02, 2012
Three months after upholding President Obama's health care reform law, the U.S. Supreme Court is back in session and ready to take on a blockbuster case that could bring an end to one of the most controversial practices arising from the civil rights movement, affirmative action.
On October 10, 2010, the Supreme Court is scheduled to hear oral arguments in the case of Fisher v. University of Texas at Austin.
Facts of the Case
Under Texas' so called "Top 10 Percent Law," all students who graduate from Texas high schools in the top 10% of their classes are guaranteed admission to state universities. At the University of Texas at Austin, students who fall below the 10% threshold are selected for admission according to a formula based on application essay scores, and a "Personal Achievement Index," which includes the applicant's community service, work experience, extracurricular activities, awards - and race.
The University of Texas states that it uses race as a factor in its Personal Achievement Index in an effort to benefit African-American and Hispanic applicants, groups the university considers "underrepresented."
Abigail Fisher, who graduated below the top 10% of her Sugar Land, Texas high school class, was denied admission to the University of Texas at Austin. In 2008, Ms. Fisher filed suit claiming that the consideration of race by state universities in their admissions processes violates the Equal Protection Clause of the Fourteenth Amendment, which states in part, "no state shall … deny to any person within its jurisdiction the equal protection of the laws."
In 2009, the U.S. District Court for the Western District of Texas upheld the University of Texas' admissions policy, and in 2011, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit upheld the opinion of the Western District Court. On February 21, 2012, the U.S. Supreme Court agreed to hear the case.
Also See: The U.S. Federal Court System
Having previously participated in the Fisher v. University of Texas at Austin case as a solicitor general under the Obama administration, Associate Justice Elena Kagan decided to recuse herself, or take no part in the Supreme Court's consideration of the case. As solicitor general, Kagan supported the University of Texas' use of race in its admissions policy.
In their petitioners' brief to the Supreme Court, Ms. Fisher's lawyers argue that because Texas' "Top 10 Percent Law," does not consider race, the University of Texas is already as racially diverse as any public university in America, and that the university is wrong to augment the 10% policy with any policy based specifically on race.
In its respondents brief, the University of Texas argues that while race is one of many factors considered in the admission of students falling below the 10% threshold, it is never the emphasis of its admissions decisions and is never used "to achieve numerical goals indistinguishable from quotas."
The Supreme Court's 2003 Affirmative Action Ruling
The case directly challenges the Supreme Court's own landmark 2003 decision in the case of Grutter v. Bollinger, written by the now-retired Justice Sandra Day O'Connor. In Grutter v. Bollinger, the high court voted 5-4 to uphold the University of Michigan's use of race as one factor in its admissions policy. In her majority opinion, Justice O'Connor noted that racial equality represented such a worthwhile goal for American society that the use of race, to some degree, by universities in selecting its students was appropriate.
However, Justice O'Connor also optimistically suggested in her decision that the day would come in America, when equality reached the point that consideration of race in school admissions and job hiring would no longer be necessary. "We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today," she wrote.
How the Court is Likely to Rule
In its Fisher v. University of Texas at Austin ruling, the Supreme Court may well decide that Justice O'Connor's day of racial equality with no further need for the use of racial preferences - affirmative action -- has come 16 years earlier that she predicted in 2003.
Traditionally, affirmative action has been supported by liberal justices and opposed by conservatives.
Since the court upheld affirmative action in its 2003 Grutter v. Bollinger ruling, the political makeup of the court has shifted to the right.
Justice Sandra Day O'Connor, who wrote the court's 5-4 Grutter v. Bollinger decision, retired in 2006 and was replaced by the more conservative George W. Bush appointee Samuel Alito.
Chief Justice John Roberts, also appointed by President Bush, has criticized the use of race as a factor in drawing congressional representation districts and public school attendance districts. It was Chief Justice Roberts who one memorably wrote of affirmative action, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."
Finally, Justice Elena Kagan, who defended the University of Texas' admission policy while serving as a U.S. solicitor general, decided to take no part in Fisher v. University of Texas at Austin.
While the Supreme Court's decision in Fisher v. University of Texas at Austin will have no direct effect on the use affirmative action in job hiring and promotion, it will certainly influence corporate policy, as well as the outcomes of legal challenges in those areas.