By MARK SHERMAN
Associated Press
WASHINGTON (AP) - The
Supreme Court is setting an election-season review of racial preference
in college admissions, agreeing Tuesday to consider new limits on the
contentious issue of affirmative action programs.
A challenge from a white
student who was denied admission to the University of Texas flagship
campus will be the high court's first look at affirmative action in
higher education since its 2003 decision endorsing the use of race as a
factor.
This time around, a more
conservative court could jettison that earlier ruling or at least limit
when colleges may take account of race in admissions.
In a term already filled
with health care, immigration and political redistricting, the justices
won't hear the affirmative action case until the fall.
But the political calendar
will still add drama. Arguments probably will take place in the final
days of the presidential election campaign.
A broad ruling in favor of
the student, Abigail Fisher, could threaten affirmative action programs
at many of the nation's public and private universities, said Vanderbilt
University law professor Brian Fitzpatrick.
A federal appeals court
upheld the Texas program at issue, saying it was allowed under the high
court's decision in Grutter vs. Bollinger in 2003 that upheld racial
considerations in university admissions at the University of Michigan
Law School.
But there have been changes
in the Supreme Court since then. For one thing, Justice Samuel Alito
appears more hostile to affirmative action than his predecessor, Sandra
Day O'Connor. For another, Justice Elena Kagan, who might be expected to
vote with the court's liberal-leaning justices in support of it, is not
taking part in the case.
Kagan's absence probably is
a result of the Justice Department's participation in the Texas case in
the lower courts at a time when she served as the Obama
administration's solicitor general.
Fisher, of Sugar Land,
Texas, filed a lawsuit along with another woman when they were denied
admission at the university's Austin campus. They contended the school's
race-conscious policy violated their civil and constitutional rights.
By then, the two had enrolled elsewhere.
The other woman has since
dropped out of the case. The state has said that Fisher is a Louisiana
State University senior whose impending graduation should bring an end
to the lawsuit. But the Supreme Court appeared not to buy that argument
Tuesday.
The Project on Fair
Representation, which opposes the use of race in public policy, has
helped pay Fisher's legal bills. "This case presents the Court with an
opportunity to clarify the boundaries of race preferences in higher
education or even reconsider whether race should be permitted at all
under the Constitution's guarantee of equal protection," said Edward
Blum, the group's director.
The project also issued a
statement in Fisher's name. "I hope the court will decide that all
future UT applicants will be allowed to compete for admission without
their race or ethnicity being a factor," she said.
Most entering freshmen at
Texas are admitted because they are among the top 10 percent in their
high school classes. Fisher's grades did not put her in that category.
The Texas Legislature
adopted the Top Ten Percent law after a federal appeals court ruling
essentially barred the use of race in admissions.
But following the high
court ruling in 2003, the university resumed considering race starting
with its 2005 entering class. The policy at issue applies to the
remaining spots beyond those filled by the top 10 percent and allows for
the consideration of race along with other factors
Texas said its updated
policy does not use quotas, which the high court has previously
rejected. Instead, it said it takes a Supreme Court-endorsed broader
approach to enrollment, with an eye toward increasing the diversity of
the student body.
"We must have the
flexibility to consider each applicant's unique experiences and
background so we can provide the best environment in which to educate
and train the students who will be our nation's future leaders," said
Bill Powers, president of the University of Texas at Austin.
Before adding race back
into the mix, Texas' student body was 21 percent African-American and
Hispanic, according to court papers.
By 2007, the year before
Fisher filed her lawsuit, African-Americans and Hispanics accounted for
more than a quarter of the entering freshman class.
Fisher's challenge says the
Top Ten Percent law was working to increase diversity and that minority
enrollment was higher than it had been under the earlier race-conscious
system.
Fitzpatrick said two other
states, California and Florida, use similar "top 10" plans, although
California law explicitly prohibits the consideration of race.
"But the vast majority of
schools that are selective are using affirmative action, though they
don't like to advertise it for fear of being sued," he said.
The case is Fisher v. University of Texas at Austin, 11-345.
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