The U.S. Supreme Court announced on Monday that it would take on another major hot-button issue in its next term: affirmative action.
Here’s what you need to know about the case that could mark the end of race-based admissions in the United States.
The case: Fisher v. University of Texas at Austin
The issue: Can the University of Texas use race as one factor in its admission decisions?
The backstory of the issue: In 1978, the Supreme Court ruled that schools could consider race as one of several factors in admissions but could not set aside a specific number of slots for applicants of a particular race. The majority opinion in Regents of the University of California v. Bakke held that affirmative action constituted discrimination against white college applicants, but argued that this discrimination could be justified if it were necessary to achieve a compelling government interest and that promoting diversity in university classrooms constituted such an interest.
For the past three decades, the University of Texas has been a key front in the war over the legitimacy of the Bakke ruling. In 1996, a federal appeals court in Texas suspended the university’s affirmative action program, ruling that “educational diversity is not recognized as a compelling state interest.”
No longer able to consider race in admissions, the University of Texas established a “race-neutral” means of promoting diversity: Beginning in 1997, all students who finished in the top 10% of their high-school’s graduating class would receive automatic admission to any public university in the state. Because many Texas high-schools have near 100% minority enrollment, the top 10% rule guarantees that a significant portion of the students entering the state’s public universities each year would be from minority backgrounds.
In 2003, the Supreme Court upheld the logic of Bakke, and UT reinstated race as an admissions criterion, while retaining the top 10% rule.
The backstory of the case: When white undergraduate Abigail Fisher was rejected by UT in 2008, she brought a legal suit challenging the university’s consideration of race in admissions, arguing that the top 10% rule had proven that the state could fulfill its compelling interest of promoting diversity without directly discriminating on the basis of race.
Fisher’s case first reached the Supreme Court in 2012. Back then, the Court ruled that the use of affirmative action by public universities was only constitutional if the school could show it had no other realistic alternative for creating a diverse student body. Since the lower court never asked the university to make such a showing, the case was returned to the Fifth Circuit Court of Appeals, which found in favor of UT Austin.
Fisher immediately appealed the ruling to the Supreme Court, and, on Monday, they agreed to hear her case.
The most likely outcome: The Supreme Court will very likely end affirmative action at UT Austin, and may even end affirmative action at all public universities.
The trouble for the policy’s supporters is twofold.
First, it took Sandra Day O’Connor joining the court’s four liberals to uphold Bakke in 2003. Since then, O’Connor has been replaced by the far more conservative Samuel Alito.
Second, the court’s liberal quartet will be shorthanded for Fisher; Elena Kagan has been forced to recuse herself because of her involvement with the Fisher case back when she was solicitor general.
When the court ruled on Fisher in 2013, Justice Antonin Scalia issued a one-paragraph concurring opinion that reiterated his objection to affirmative action in all circumstances, and implicitly suggested that next time she came before the court, Fisher should ask the court to end it outright.
