Supreme Court will hear new challenge to affirmative action

WASHINGTON – The Supreme Court handed opponents of affirmative action policies a potential victory Monday by agreeing to hear another challenge to the University of Texas' use of racial preferences in admissions.

The one-line order represents a new chapter in a seven-year dispute initiated when Abigail Fisher, a white applicant, was denied admission to the state university's flagship campus in Austin.

Her case first reached the court in 2012, after she had graduated from an out-of-state school. Rather than ruling for or against the affirmative action plan at the time, the justices sent the case back to a federal appeals court with instructions that it more closely scrutinize the Texas university's admissions policies.

The appeals court – one of the most conservative in the country – again sided with the school, prompting Fisher's attorneys to seek the high court's review a second time.

By agreeing to reconsider the policies, the justices served notice that they might overrule the appeals court and rule against the school's limited use of race in admissions. Their decision had been pending for more than a month, leading some to predict that they would deny the case, with one or more conservative justices dissenting.

The Texas school's policy is two-tiered: It fills 75% of its incoming class with the top students from nearly every high school in the state; to make the cut in recent years, students had to be in the top 7% to 8% of their high school class. That guarantees some racial diversity because of the pattern of housing segregation.

Then, to fill out each year's freshman class, the school looks at a range of other factors – including race.

After hearing Fisher's challenge in October 2012, the justices labored for more than eight months before releasing a non-controversial, 7-1 ruling that gave Fisher another chance in the lower court.

"The Court of Appeals must assess whether the university has offered sufficient evidence that would prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity," Justice Anthony Kennedy wrote in what appeared to be a negotiated compromise that included Justice Sonia Sotomayor, a product of affirmative action policies.

The appeals court once again upheld that policy last July – five years after the university's first legal victory in federal district court. "To deny UT-Austin its limited use of race in its search for holistic diversity would hobble the richness of the educational experience," the court's 2-1 majority said.

Now, the Supreme Court will review that decision. Justice Elena Kagan is recused from the case, presumably because she participated in it when she was U.S. solicitor general in 2009-10.

"The outcome of this case may bring our nation closer to the day when a student's race and ethnicity is not a factor that a school may consider during the admissions process," said Edward Blum, president of the Project on Fair Representation, the organization that has been behind the effort from the start.

In a separate case, the Supreme Court ruled last year that individual states can ban racial preferences in university admissions. The 6-2 decision was a victory for Michigan, where a voter-approved initiative banning affirmative action had been tied up in court for a decade.

Seven other states — California, Florida, Washington, Arizona, Nebraska, Oklahoma and New Hampshire — have similar bans. But the ruling did not jeopardize the wide use of racial preferences in many of the 42 states without bans, including Texas.