Opponents of affirmative action hope that the current court, more conservative than the one that made the 2003 decision, will further constrain the use of race or eliminate it completely.
The affirmative action case adds to a remarkable convergence of controversial social issues on the court’s docket, even as the justices themselves take on a higher, election-year profile.
The court’s 2010 decision in
Citizens United v. Federal Election Commission
, allowing unlimited corporate and union election spending, has roiled the world of political fundraising. Next month, the justices will hear six hours of oral arguments about President Obama’s health-care overhaul. After that, they will consider Arizona’s controversial attempts to crack down on illegal immigrants.
And it seems inevitable that the court will be drawn into partisan fighting over political redistricting as well as the question of same-sex marriage. The affirmative action case will be heard when the court’s new term begins in October, just as the nation turns to the presidential election.
Edward Blum, director of the Project on Fair Representation, which is representing Abigail Noel Fisher, the student rejected by UT, said the 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 Obama administration supported Texas in the lower courts and has advised colleges and universities that under the court’s 2003 decision, they may still make some race-based decisions to expand campus diversity.
UT President Bill Powers said that is the goal of the admissions policy. “We must have the flexibility to consider each applicant’s unique experiences and background so we can provide the best environment in which to educate and train the students who will be our nation’s future leaders,” he said in a statement.
Since 1978, the court has been closely divided on the use of racial preferences, but it reaffirmed its support for limited use in the 2003 case,
Grutter v. Bollinger
. Justice Sandra Day O’Connor wrote for the five-member majority upholding a University of Michigan Law School policy, saying it was legitimate to use race as a factor in a holistic evaluation of an applicant to create a “critical mass” of minority students.
“We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today,” she wrote.