The Supreme Court will take a fresh crack Wednesday at a policy Chief Justice John Roberts has never liked—the use of affirmative action in college admissions.
"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” Roberts famously wrote in a 2007 ruling. Since then, the Court has moved slowly and incrementally, but always toward, a smaller and smaller role for race-based admissions policies.
The case before the justices Wednesday is a re-tread of one they decided in 2013, Fisher v. University of Texas.
Abigail Fisher didn’t get into the University of Texas, Austin, when she applied seven years ago, and she sued the school, arguing that the school violated her constitutional rights by adopting an admissions policy that gave some preference to minorities. In 2013, when Fisher’s case first came to the Supreme Court, the justices sent it back down to a federal appeals court with instructions to reconsider the Texas admissions program using a specific legal test known as “strict scrutiny.” The lower court said Texas met that standard, and Fisher appealed again to the Supreme Court.
This time around, Justice Anthony Kennedy probably holds the swing vote, and he has been hard to pin down on affirmative-action issues. He has said in the past that diversity is a legitimate interest for public universities to pursue, but the justices have often looked warily at specific programs.
Fisher’s case is complicated, and it's wrapped up with the specifics of Texas’s admissions program. Most legal experts don’t think it will spell the ultimate end of affirmative action but rather is likely to draw a more narrowly focused reason.
But there are still plenty of reasons for affirmative-action supporters to be nervous, and several universities have weighed in on Texas’s side of the case, even though their admissions programs operate differently. Even some private universities, which operate under different rules than state schools, joined the fray. Harvard University said the Court should give schools significant latitude to set their own admissions policies.
“Compelling Harvard to replace its time-tested holistic admissions policies with the mechanistic race-neutral alternatives that petitioner suggests would fundamentally compromise Harvard’s ability to admit classes that are academically excellent, broadly diverse, extraordinarily talented, and filled with the potential to succeed and thrive after graduation,” the school wrote in an amicus brief.
Justice Elena Kagan is taking no part in the case, presumably because she worked on the issue in her time as solicitor general. Should the remaining eight justices split 4-4, the lower court’s ruling in favor of Texas’s admission policy would stand.
This article is from the archive of our partner National Journal.
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