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Is Affirmative Action Headed Back to the Supreme Court?

On Friday, the Fifth Circuit Court of Appeals decided by a 9-7 vote not to have a full panel of court members rehear a challenge to affirmative action at the University of Texas at Austin, leaving in place a  ruling of a three-member panel upholding UT’s use of racial and ethnic preferences. Although the plaintiffs in the case, Fisher v. Texas, have not yet announced whether they will appeal, a source close to the case indicated to me that the U.S. Supreme Court is a likely next stop. If the Supreme Court accepts a petition to hear the case, the oral argument could take place in the spring, with a decision likely a year from now—smack in the middle of the presidential campaign.

Fifth Circuit Chief Judge Edith Jones, writing for five dissenting judges, faulted the three-member panel for sustaining racial and ethnic preferences because UT Austin’s Top Ten Percent Plan, which automatically admits students at the top of their high-school classes, produced sufficient racial diversity on its own. She noted that without using race, the Ten Percent plan produced a class that was more than 20 percent African-American and Hispanic. Texas, she said, had achieved more racial and ethnic diversity without using race in admissions than had the race-conscious University of Michigan law school plan upheld in Grutter v. Bollinger (2003), which produced a class that 14.5 percent black and Hispanic. Texas’s decision to reinstate the use of race on top of the Ten Percent plan may be unconstitutional, she said.

Moreover, Jones rejected as “pernicious” the three-member panel’s support for the idea that even if the undergraduate school were diverse without using race, racial preference would nevertheless be necessary in order to ensure that individual classrooms were diverse as well. She wrote: “The panel opinion opens the door to effective quotas in undergraduate majors in which certain minority students are perceived to be ‘underrepresented.’”

If the suit is appealed, will the U.S. Supreme Court agree to consider the case? On the one hand, there is no split among Circuit courts—with one court ruling one way and another court ruling another—which sometimes prompts the U.S. Supreme Court to intervene. But Chief Judge Jones and her dissenting colleagues seemed to be signaling to the Supreme Court that the question of how the 2003 Grutter decision is applied is one of national significance. And for the new conservative majority on the Court that has formed in the years since Grutter was decided, the Fisher case may present a unique opportunity to reshape the law of affirmative action. (There are no other high-profile challenges to affirmative action in higher education waiting in the wings.)

In particular, the Fisher case appears tailor-made to appeal to Justice Anthony Kennedy, the new swing vote on the Supreme Court, and a dissenter in the Grutter decision. In Grutter, Kennedy complained that the university was not sufficiently pressed to show that it was impossible to find race-neutral means—such as top-percent plans or class-based affirmative action—to achieve racial diversity prior to resorting to racial preferences.

Finally, the Court may wish to revisit the question of affirmative action given accelerating demographic changes. For example, how should admissions officers treat bi-racial or multi-racial children? As a recent front-page New York Times story asks, is it right that the current system of racial preferences in college encourages a student who identifies as both Asian and black to check only the black box to increase her chances of admission? As others have noted, the UT Austin case also highlights the way affirmative action affects America’s largest minority group, Latinos,  moving beyond the older, largely black/white paradigm presented in Grutter and earlier cases.

If the Supreme Court does decide to hear the case, the issue will put the Obama administration in an awkward position. At the lower court level, where very little attention was paid, Obama’s Department of Justice sided with the University of Texas in support of using race in admissions. But this position may be hard to reconcile with Obama’s stated belief that his own privileged daughters don’t deserve affirmative-action preferences, and that low-income students of all races do. Roger Clegg, of the conservative Center for Equal Opportunity, argues that Obama’s endorsement of race-neutral alternatives to affirmative action could be “a Nixon goes to China moment.”

Public-opinion polls taken around that time of the Grutter case suggested that Americans opposed racial preferences by 2:1, but favored class-based preferences by the same margin. Just yesterday, a Washington Post poll found by 56% to 11%, Washingtonians believe they are mainly divided by income rather than race. And new research suggests that today’s obstacles to doing well on the SAT are more closely related to socioeconomic disadvantages (which cost students up to 399 SAT points) than racial ones (which cost students up to 56 points.)

The issues of race, class, and college admissions—which have largely subsided in the eight years since Grutter was decided—may soon return to center stage.

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