Cases to Watch: Fisher v. University of Texas at Austin
This post is the first in a series that will take a closer look at upcoming Supreme Court cases for the 2012-2013 term.
As college freshmen begin moving into dorms and exploring campuses, the stress and anxiety of the admissions process fades quietly away. But for one graduating senior at Louisiana State University, the admissions process at the University of Texas has remained a constant source of attention. Abigail Fisher will graduate from LSU this coming spring, but she has been embattled in litigation since 2008 when she was denied admission to the University of Texas. She alleges she was the victim of an affirmative action program of a type the Reform Movement has generally supported.
Fisher v. University of Texas at Austin challenges an affirmative action program at the University of Texas. When Ms. Fisher applied to the University of Texas, the school was operating on the two-tiered admissions system that had been implemented after the Grutter decision: In-state applicants who graduated in the top 10 percent of their high school class were automatically admitted, and the remaining application pool was evaluated with a “holistic” approach that considered not only test scores, leadership activities, and community service, but race as well. Ms. Fisher had just missed the 10 percent cut-off and was placed in a large pool of applicants vying for just 20 percent of all admission slots. Ms. Fisher claims that her application was rejected in the second tier of admissions because she is white.
In 1978, the Supreme Court upheld the constitutionality of affirmative action programs in Regents of University of California v. Bakke (1978). After the Bakke decision, affirmative action was not questioned in the Supreme Court for 25 years. In 2003, the Court held in Grutter v. Bollinger that certain types of race-conscious admission programs aimed at achieving a more diverse student body were constitutionally acceptable, Soon after, Texas implemented the affirmative action program that is being challenged in the Supreme Court. The Grutter decision nullified the Fifth Circuit Court of Appeals ruling in Hopwood v. Texas, which held that the use of race may not be a determining factor in admissions procedures.
In the Grutter decision, Justices noted their expectation that affirmative action would be unnecessary in another 25 years, due to the rapidly changing nature of racial equality in the U.S. Now, just nine short years later, the Court (with the exception of Associate Justice Elena Kagan, who has recused herself since she was involved in the case while serving as President Obama’s solicitor general) will hear oral argument in Fisher v. University of Texas at Austin on October 10, 2012. At stake is whether Ms. Fisher even has the standing to sue the University of Texas over her rejection (considering she now attends Louisiana State University) and, more broadly, the fate of higher education affirmative action programs that ensure a level playing field for all.
The current composition of the Court is not particularly friendly to affirmative action—Chief Justice Roberts and Associate Justices Alito, Thomas and Scalia all opposed affirmative action programs in past decisions. Meanwhile, Associate Justice Kennedy has never voted in favor of upholding an affirmative action program, but he has acknowledged diversity as a legitimate goal of admissions programs, suggesting that some affirmative action programs might be permissible if they involve “race-neutral alternatives.” The Reform Movement has long viewed affirmative action programs as a key component in achieving the goals of the civil rights movement and as a great equalizer for qualified women and minorities.
Check back at RACblog for more SCOTUS previews throughout the summer.