Don't Mess With Texas ... University Affirmative Action?

By Robyn Hagan Cain on February 27, 2012 | Last updated on March 21, 2019

Until the 24-hour news stations ratchet up the individual mandate discussions before the Affordable Care Act arguments in March, the university affirmative action review will be the talk of the legal community.

Last week, the Supreme Court voted to review Fisher v. University of Texas, a Fifth Circuit Court of Appeals decision upholding a race-based admissions policy at the University of Texas (UT). Now, the Internet is buzzing with questions over whether the Nine will end university affirmative action 14 years before the soft deadline retired Justice Sandra Day O'Connor set in her 2003 Grutter v. Bollinger opinion.

In Grutter, the Court ruled 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 on top of 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 UT Austin despite having higher grades than non-white students who were admitted.

So will the Supreme Court reverse the Fifth Circuit Court of Appeals and put an end to university affirmative action when it hears Fisher? It seems likely. Since the last time the Court considered the issue, Justices Alito, Kagan, Sotomayor, and Roberts have replaced Justices O'Connor, Stevens, Souter, and Rehnquist, respectively, on the bench. Justice Alito, who replaced Grutter author O'Connor, is expected to vote against university affirmative action, which would shift the 5-4 Grutter majority.

Adding to the odds of an affirmative action policy change, Justice Kagan has recused herself from the case, which could signal a 5-3 decision requiring race-neutral alternatives before racial-preference alternatives, according to Slate.

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