• A More Conservative Supreme Court To Revisit Affirmative Action In University Of Texas Case
  • April 18, 2012 | Author: Jennifer L. Craighead
  • Law Firm: Barley Snyder - Lancaster Office
  • In Gutter v. Bollinger, 539 U.S. 306 (2003), the U.S. Supreme Court, in a 5-4 decision, upheld the University of Michigan Law School’s policy of using race and ethnicity as a factor in the admissions process. In so ruling, the Supreme Court noted that race and ethnicity can be one of my factors considered by colleges when selecting students. The Court found “a compelling interest in obtaining the educational benefits that flow from a diverse student body” and credited the admissions process at the law school with using a “highly individualized, holistic review of each applicant’s file”. Race, according to the Court, was not used in a “mechanical way”. However, the Court ruled 6-3 that the University of Michigan’s undergraduate admissions program, which relied on a point system that awarded twenty additional points to African-American, Hispanic and American-Indian applicants, did not provide the “individualized consideration” necessary to survive scrutiny and therefore, had to be modified. The Grutter decision in essence provided a roadmap of the Constitutional parameters required for public colleges and universities to use race and ethnicity factors in their admissions process.
    Now, the U.S. Supreme Court is once again poised to decide the issue of affirmative action in public university admissions, this time involving the University of Texas at Austin (the “University”). Specifically, in Fisher v. University of Texas at Austin, Case No. 11-345, the Supreme Court will decide whether its prior decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Grutter, permit the University’s use of race in undergraduate decisions.
    Prior to Grutter the Texas legislature had approved a race neutral policy for admissions to the state’s university system. Under this policy, the University automatically accepted for admission all Texas high school seniors who had ranked in the top 10% of their class. This race neutral system accounted for 83% of the admissions to the University. After Grutter the University continued to use this policy for admissions, but also developed a plan to increase racial diversity by providing for admission of underrepresented African-American and Hispanic students using a comparison to the minority population in Texas. Under this plan, race was included as a specific factor in admissions calculations for those who did not qualify under the top 10% policy. This coding was also used as a factor for determining selection into academic majors and to enhance diversity in individual classes.
    Ms. Fisher, who is Caucasian, applied to the University in 2008. She did not qualify under the top 10% program. She was denied admission and filed suit, claiming minorities with lower academic qualifications were accepted into the school. Both the federal district court and the Fifth Circuit Court of Appeals upheld the University’s use of race as a factor in the coding system. In her Petition to the Supreme Court, Ms. Fisher argues that the Fifth Circuit misread Grutter and was too lenient and deferential in crediting the University’s program. Significantly, in the alternative, she argues that the Court should reconsider its decision in Grutter “to restore the integrity of the Fourteenth Amendment’s guarantee of equal protection”.
    The case is scheduled for oral argument in the Fall of 2012. In the Grutter decision, Sandra Day O’Connor cast the deciding vote in favor of the University of Michigan Law School’s admissions program. She has since retired and has been replaced by Samuel Alito. It is believed that a more conservative court may in fact revisit its decision in Grutter as requested by the Plaintiff, Ms. Fisher, putting into jeopardy the University’s program as well as similar programs across the county.