Supreme Court may halt college affirmative action

The justices of the U.S. Supreme Court sit for their official photograph Oct. 8, 2010, at the Supreme Court in Washington. From left to right, front row: Associate Justice Clarence Thomas, Associate Justice Antonin Scalia, Chief Justice John G. Roberts, Associate Justice Anthony M. Kennedy and Associate Justice Ruth Bader Ginsburg. From left to right, back row: Associate Justice Sonia Sotomayor, Associate Justice Stephen Breyer, Associate Justice Samuel Alito Jr. and Associate Justice Elena Kagan. AFP/Getty Images

COMMENTARY Is it possible that affirmative action at public colleges and universities is on its way out? The practice could very well be doomed.

In a highly anticipated move, the U.S. Supreme Court said Tuesday that it would accept a case to consider whether the University of Texas at Austin has the right to take ethnicity and race into consideration when making admission decisions.

Supreme Court takes new affirmative action case

The last time the U.S. Supreme Court reviewed affirmative action policies on college campuses was in 2003 in a landmark case involving the University of Michigan's law school (Grutter v. Bollinger). With a fairly murky decision, the court upheld the continuation of racial preferences at public universities by a 5-to-4 vote. Since that time, Justice Sandra Day O'Connor, who provided the swing vote and wrote the opinion, retired, and the court has grown much more conservative. Samuel A. Alito Jr., her replacement, is on record as opposing "racial balancing" practices.

The case's origin

The current affirmative action litigation can be traced back to 2008 when the University of Texas rejected Abigail Fisher, a young white woman. She claimed that the school rejected her because of the color of her skin. Her lawyers claim the University of Texas exceeded what the 2003 court decision allowed.

Recently, Edward Blum, the director of the Project on Fair Representation, a nonprofit legal defense fund that supports litigation that challenges ethnic and racial preferences, had this to say about the anticipated Supreme Court affirmative action case:

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.

The University of Texas relies on an admission policy that automatically accepts the students in the top 10 percent of their high school classes. This practice boosts diversity because many high schools in Texas are predominantly comprised of minority students. The University of Texas goes further by also using race as an admission hook when considering applicants who aren't in the top 10 percent of their classes. Fisher was applying for admission in that pool.

How big will be the case be?

While the court could narrowly rule on this case, its recent track record suggests that it is going to make a bigger splash. Just look what the court did with its highly controversial Citizens United v. Federal Election Commission decision that could have been decided quite narrowly. The justices, in a 5-to-4 vote, trashed most campaign finance regulations and unleashed Super PACs on our elections.

The justices will hear arguments in the case in the fall.

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