Eight Justices will decide the fate of affirmative action during the 2012 term. Eight Justices will determine whether America has progressed enough in the last nine years to abandon race-based preferences in higher education.

Kind of surreal, right?

In 2003, the Supreme Court ruled in Grutter v. Bollinger that schools could consider race as a “plus factor” in admissions decisions. The University of Texas at Austin used Grutter to allow for race-based admissions to supplement a statewide, race-neutral policy that had already created diverse campuses. (The race-neutral policy is a Texas law that guarantees a graduate in the top 10 percent of his or her Texas high school class automatic admission to any public university in the state.)

Plaintiff Abigail Fisher, who missed the 10 percent cut-off, claims that UT’s policy violated her rights because she was denied admission at the University, despite having higher grades than non-white students who were admitted.

The issue in the case is whether the Supreme Court’s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Grutter, permit the University of Texas at Austin’s use of race in undergraduate admissions decisions.

Since the last time the issue was before the Court, Justices Alito, Kagan, Sotomayor, and Roberts have replaced Justices O’Connor, Stevens, Souter, and Rehnquist, respectively, on the bench.

Even if the Justices may be learning toward reversal, a number of states want the Supreme Court to affirm the Fifth Circuit’s decision to uphold the admissions policy. Fourteen states submitted an amicus brief in favor of the University asking the Court to “[respect] the traditional role of states in developing differing solutions to difficult and important problems,” according to Stateline.

But there’s still a third option: Since UT’s race-neutral policy could achieve a diverse campus without allotting for a race-based “plus factor,” the Court could simply find that UT’s policy violated the Equal Protection Clause because it was redundant.

In light of the Court’s narrowly-drawn question, a narrowly-drawn ruling – striking the UT policy while preserving affirmative action – isn’t out of the question.

Related Resources:

  • Don’t
  • Mess With Texas … University Affirmative Action? (FindLaw’s Fifth Circuit
  • Blog)Ninth
  • Circuit Upholds California University Affirmative Action Ban (FindLaw’s
  • Ninth Circuit Blog)Sixth
  • Circuit Mulls University Affirmative Action Ban (FindLaw’s Sixth Circuit
  • Blog)

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