The last time the U.S. Supreme Court ruled on university affirmative action, upholding it in 2003, Justice Sandra Day O’Connor predicted the practice would outlive its usefulness in 25 years.
Now the end may come a lot sooner than that.
The high court revisits race-based admissions today, hearing the case of a rejected white applicant to the University of Texas. The court’s reconstituted membership makes new limits probable, even as dozens of the nation’s largest companies, such as Microsoft Corp. (MSFT:US) and Wal-Mart Stores Inc., (WMT:US) call for continued use of affirmative action to ensure a diverse workforce.
“It’s just a matter of time before the use of race is restricted, prohibited,” said Ward Connerly, a former member of the University of California Board of Regents who led a successful fight to end preferences at public institutions in that state.
Affirmative action has been a fixture on U.S. campuses since the civil rights movement in the 1960s, helping integrate what had once been overwhelmingly white universities. All but a handful of the nation’s selective colleges and professional schools now use race as a consideration in admissions as they seek to ensure a diverse student body.
A ruling against Texas would raise new legal questions about those programs -- and perhaps even wipe them out. Public and private universities alike may be forced to turn to race- neutral steps, such as class-based affirmative action and the abolition of legacy preferences, which disproportionately go to white students, to maintain the same level of campus diversity. A ruling by the court isn’t expected until next year.
Proponents of affirmative action say those moves would be an inadequate substitute for traditional racial preferences.
Texas has support in the case from some of the nation’s most powerful institutions. Fifty-nine companies -- including Gap Inc., General Electric Co. (GE:US), Pfizer Inc., Shell Oil Co. and Viacom Inc. (VIAB:US) -- filed a brief saying they rely on universities to train a racially diverse workforce.
For companies to succeed, “they must be able to hire highly trained employees of all races, religions, cultures and economic backgrounds,” the companies argued.
Those corporations are in the unusual position of arguing alongside the Obama administration, which is casting affirmative action as a national security issue. The administration says race-conscious admissions, both at the country’s military academies and at universities with Reserve Officer Training Corps programs, help ensure a diverse officer corps. A group of 37 former military leaders is making similar arguments.
Harvard, Yale Support
In addition, Texas has the support of the nation’s higher- education establishment, including Harvard University, Yale University and Princeton University.
O’Connor pointed to corporate and military support for affirmative action when she wrote the court’s 2003 majority opinion in Grutter v. Bollinger.
That 5-4 decision, which reaffirmed the landmark 1978 Bakke ruling, said colleges and graduate schools could consider race as long as they do so through a broad review of a student’s application and don’t mechanistically award extra points to every minority.
O’Connor’s 2006 retirement, and succession by Justice Samuel Alito, may prove to be affirmative action’s turning point. Alito gives the court five skeptics of racial preferences, joining Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas.
Kennedy now stands as the court’s swing vote on the issue. He dissented in 2003, saying the University of Michigan Law School policy at issue in that case was akin to a quota.
‘10 Percent Rule’
A central question in the Texas case is whether universities can adequately diversify without resorting to racial preferences. The University of Texas admits three- quarters of its freshman class each year on the basis of high school class rank -- the “top 10 percent rule.” That system, the product of a 1997 state law, ensures a significant number of minorities because it guarantees slots to students at predominantly Hispanic and black schools.
The university considers race only in admitting the rest of the class. Lawyers for Abigail Noel Fisher, the rejected white applicant, say that’s unnecessary, given the success of the class-rank method.
Texas shouldn’t use the “extreme measure of racial classifications to obtain trivial gains in minority enrollment, especially in light of the meaningful impact of existing race- neutral measures on UT’s student-body diversity,” Fisher’s lawyers argued in court papers.
Fisher applied unsuccessfully to Texas in 2008 and later enrolled at Louisiana State University. A graduate of a Houston- area public high school, she says she was passed over by UT in favor of minority classmates with lower grades and fewer activities.
Texas says its affirmative action program is a model of the type of plan the high court approved in the Grutter ruling.
“This court has recognized that universities have a compelling interest in promoting student body diversity, and that a university may consider the race of applicants in an individualized and modest manner,” the university argued.
A federal appeals court upheld the Texas admission system, saying it squared with the admissions policy upheld in Grutter.
Justice Elena Kagan isn’t taking part in the case. She was the Obama administration’s top courtroom lawyer when the administration filed a brief at the appeals court level.
The case is Fisher v. University of Texas at Austin, 11-345.
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