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The Supreme Court said today that it will revisit the issue of affirmative action in higher education. The court agreed to hear arguments next fall in a case that challenges the affirmative action program at the University of Texas. By re-entering the fray, after more than 30 years of settled law on the issue, the court's conservative majority has signaled that it may be willing to unsettle much of that law.
NPR's Nina Totenberg reports.
NINA TOTENBERG, BYLINE: Nine years ago, the high court, by a 5-to-4 vote, reaffirmed a 1978 decision declaring that race can be one of many factors that may be considered in college admissions. The author of that 2003 opinion, Justice Sandra Day O'Connor, said that while quotas are not permissible, racial diversity is an essential part of higher education's mission. Thus, race can be a plus factor, just like being the child of an alumnus can be a plus factor, or having athletic or musical talent.
But just two years after writing that landmark opinion, O'Connor retired and was replaced by Justice Samuel Alito, who has quite consistently been hostile to the idea of racial preferences in any form. So when the Supreme Court today decided to revisit the issue, the clear suggestion was that a new and far more conservative court majority may be prepared to reverse 34 years of legal doctrine that has long been the basis for admissions programs across the country.
In addition to Alito, three other justices have been overtly hostile to the idea of affirmative action: Clarence Thomas, Antonin Scalia and Chief Justice John Roberts. In a 2007 opinion, Roberts wrote that racial balancing in schools cannot be transformed into a constitutional practice by labeling it diversity. And diversity is precisely the objective of the Texas program.
The fifth potential vote against Texas would be Justice Anthony Kennedy, who generally has taken a less hard-line tone, but nonetheless has never voted to support an affirmative action program in higher education.
Making matters even more grim for supporters of affirmative action is the fact that Justice Elena Kagan has recused herself from the Texas case. When she served in the Obama administration, her office filed a Friend of the Court Brief in the case.
The Texas affirmative action program is something of a hybrid. Most of the student slots are allocated by formula. If you're in the top 10 percent of your high school graduating class, you're in. Approximately 81 percent of the school's slots were allocated this way.
The challenger in this case, Abigail Fisher, was not in the top 10 percent of her high school class, and she claims that she was disadvantaged by the system used to choose the remaining 19 percent of the students. That's where race is considered, along with a personal essay, character, special talents, and special circumstances, such as the socio-economic status of the student's family. Two lower courts upheld the program.
Nina Totenberg, NPR News, Washington.