Justices Will Review Racial Preference for College

By Mark Sherman

Washington - The Supreme Court is setting an election-season review of racial preference in college admissions, agreeing Tuesday to consider new limits on the contentious issue of affirmative action programs.

A challenge from a white student who was denied admission to the University of Texas flagship campus will be the high court's first look at affirmative action in higher education since its 2003 decision endorsing the use of race as a factor.

This time around, a more conservative court could jettison that earlier ruling or at least limit when colleges may take account of race in admissions.

In a term already filled with health care, immigration and political redistricting, the justices won't hear the affirmative action case until the fall.

But the political calendar will still add drama. Arguments probably will take place in the final days of the presidential election campaign.

A broad ruling in favor of the student, Abigail Fisher, could threaten affirmative action programs at many of the nation's public and private universities, said Vanderbilt University law professor Brian Fitzpatrick.

A federal appeals court upheld the Texas program at issue, saying it was allowed under the high court's decision in Grutter vs. Bollinger in 2003 that upheld racial considerations in university admissions at the University of Michigan Law School.

But there have been changes in the Supreme Court since then. For one thing, Justice Samuel Alito appears more hostile to affirmative action than his predecessor, Sandra Day O'Connor. For another, Justice Elena Kagan, who might be expected to vote with the court's liberal-leaning justices in support of it, is not taking part in the case.

Kagan's absence probably is a result of the Justice Department's participation in the Texas case in the lower courts at a time when she served as the Obama administration's solicitor general.

Fisher, of Sugar Land, Texas, filed a lawsuit along with another woman when they were denied admission at the university's Austin campus. They contended the school's race-conscious policy violated their civil and constitutional rights. By then, the two had enrolled elsewhere.

The other woman has since dropped out of the case. The state has said that Fisher is a Louisiana State University senior whose impending graduation should bring an end to the lawsuit. But the Supreme Court appeared not to buy that argument Tuesday.

The Project on Fair Representation, which opposes the use of race in public policy, has helped pay Fisher's legal bills. "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," said Edward Blum, the group's director.

The project also issued a statement in Fisher's name. "I hope the court will decide that all future UT applicants will be allowed to compete for admission without their race or ethnicity being a factor," she said.

Most entering freshmen at Texas are admitted because they are among the top 10 percent in their high school classes. Fisher's grades did not put her in that category.

The Texas Legislature adopted the Top Ten Percent law after a federal appeals court ruling essentially barred the use of race in admissions.

But following the high court ruling in 2003, the university resumed considering race starting with its 2005 entering class. The policy at issue applies to the remaining spots beyond those filled by the top 10 percent and allows for the consideration of race along with other factors

Texas said its updated policy does not use quotas, which the high court has previously rejected. Instead, it said it takes a Supreme Court-endorsed broader approach to enrollment, with an eye toward increasing the diversity of the student body.

"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," said Bill Powers, president of the University of Texas at Austin.

Before adding race back into the mix, Texas' student body was 21 percent African-American and Hispanic, according to court papers.

By 2007, the year before Fisher filed her lawsuit, African-Americans and Hispanics accounted for more than a quarter of the entering freshman class.

Fisher's challenge says the Top Ten Percent law was working to increase diversity and that minority enrollment was higher than it had been under the earlier race-conscious system.

Fitzpatrick said two other states, California and Florida, use similar "top 10" plans, although California law 

explicitly prohibits the consideration of race.

"But the vast majority of schools that are selective are using affirmative action, though they don't like to advertise it for fear of being sued," he said.

The case is Fisher v. University of Texas at Austin, 11-345.