A Texas affirmative action case that has the potential to rewrite law on how or whether public colleges and universities may consider race and ethnicity as a factor in admissions could be headed for the U.S. Supreme Court, and soon.
Though the court, which opened its fall term this week, has not yet agreed to hear Fisher v. the University of Texas at Austin, constitutional experts on both sides of the issue say they believe the case will be scheduled for a hearing this year or next spring, just as the presidential election season heats up.
The Obama administration weighed in early this year with an amicus brief in support of the University of Texas policy.
Texas Gov. Rick Perry, a GOP presidential candidate already in trouble with conservatives for endorsing a program that allows children of immigrants to pay in-state tuition at public institutions, appointed the university officials overseeing the university's admissions program.
And former Massachusetts Gov. Mitt Romney, who has traded GOP presidential front-runner status with Perry, told The Washington Post in 2008 that he does not support "quotas in hiring, government contracting, school admissions or the like."
So the first federal court challenge of a precedent established by a divided court eight years ago could be heard, and decided, in the middle of a hard-fought presidential contest when both parties will ask voters to think about who they'd like to see in the Oval Office next time a Supreme Court vacancy comes along.
In 2003, the justices ruled 5-4 that the University of Michigan's use of race in assessing law school applicants did not violate the Constitution's equal protection clause as long as the policy was "narrowly tailored" to further the "compelling government interest" of a diverse student body.
But the makeup of the court has changed since justices heard that case, known as Grutter v. Bollinger. Justice Sandra Day O'Connor, who wrote the Grutter decision, has retired, replaced by the more conservative, anti-affirmative action Justice Samuel Alito. And the Texas policy barely survived in June when a bitterly divided Fifth Circuit Court panel refused to rehear a three-judge panel's earlier decision that upheld the university's position.
"The case is ripe for the Supreme Court," says Joshua Thompson of the Pacific Legal Foundation, which has argued that Texas is violating the Constitution because it has failed to prove that "race-neutral" admissions policies haven't achieved diversity at the flagship university.
"The Texas case has brought the Grutter decision back into the national consciousness," says Thompson, a lawyer in California.
Constitutional law expert Erwin Chemerinsky, founding dean of the School of Law at the University of California, Irvine, agrees that Grutter will likely be reassessed when the high court takes the Texas case, but for different reasons.
"The change in the composition of the court is what makes it likely that the court will hear this," he says. "The most conservative justices are vehemently against affirmative action and see the chance to significantly change the law."
The Grutter decision, he has said, "seems in great jeopardy."
Beginnings Of A Challenge
The Texas case began in 2008, when two white female applicants, Abigail Fisher and Rachel Michalewicz, were denied entrance into the state's largest university.
They challenged the university's race-conscious admission policies, arguing that they were not "narrowly tailored" as required by Grutter, and disproportionately benefited Hispanic students at the expense of others, including Asian-American applicants.
The policy, they argued, violated the Constitution's equal protection clause, and federal civil rights statutes.
Admissions policy at the University of Texas has changed with the times and the laws. When the young women applied, more than 80 percent of students were accepted under the state's so-called "Top 10 Percent Law," a race-neutral policy, instituted in 1997, that guarantees a place at a state public university for every Texas student graduating in the top 10 percent of her high school class.
The much smaller pool of other applicants is assessed on a range of criteria that has included test scores, special talents, "family status" and — since the 2003 Grutter decision — "the applicant's race." The university has defended the policy as a tool used, in part, to increase diversity in "individual class sections."
Critics of the policy argue that, unlike Michigan, where the law school was woefully lacking in diversity, Texas already had a diverse university population, because of both the racial and ethnic makeup of the state and the effects of the Top 10 Percent law.
The race-neutral Top 10 Percent Law has guaranteed diversity and continues to do so, they argue.
The Texas challenge is being paid for and pursued by the Project on Fair Representation, a conservative group based in Washington. The Texas Tribune has reported that the group's founder, Edward Blum, an "anti-affirmative action crusader" and formerly from Houston, founded the group in 2005 to challenge the use of race in public policy. Prominent Washington lawyer Bert Rein is representing the plaintiffs.
In a stinging dissent to the Fifth Circuit's recent refusal to rehear Fisher, Chief Judge Edith Jones accused her colleagues of "judicial abdication" for failing to review a "race-conscious admissions program ... that favors two groups, African-Americans and Hispanics, in one of the most ethnically diverse states in the United States."
"Texas today is increasingly diverse in ways that transcend the crude White/Black/Hispanic calculus that is the measure of the university's race-conscious admissions program," Jones wrote. She asserted that the Hispanic population ranges from families that have Texas roots going back generations, to recent immigrants, and with significant social and cultural differences among them.
"Privileging the admission of certain minorities in this true melting-pot environment seems inapt," she said.
Thompson, of the Pacific Legal Foundation, argues that the particular circumstances of Texas are different from those of Michigan, where race-conscious admissions did boost law school enrollment of African-American and Hispanic students from 4 percent to 14.5 percent of the student body.
Using race as a factor in Texas, critics argue, had an inconsequential effect on diversity at the university.
A Remedy For Past Discrimination?
At a time when many are struggling with the definition of diversity in an increasingly biracial and multi-ethnic society, affirmative action policies once more widely accepted as a partial remedy for past discrimination are increasingly vulnerable.
But Chemerinsky argues that they are still needed.
"The reality is that because of the legacy of discrimination, we still will not have diversity in colleges and universities without affirmative action," he says. "The number of African-Americans going to law school is decreasing. If the court overrules Grutter, or significantly limits it, the ability to have diversity in colleges and law schools will be greatly reduced."
In a recent book, Chemerinsky wrote that while color blindness sounds noble, "there is every difference in the world between using race to discriminate and using race to desegregate."
That's a debate that won't end anytime soon, especially if the Texas case winds its way into the presidential campaign.