On Wednesday, the U.S. Supreme Court will again review the role of affirmative action in higher education. The latest case, Fisher v. University of Texas has the potential to completely reshape the way affirmative action programs are used in the United States, and it all comes down to how broadly the court interprets the issue.

Affirmative Action’s Path to the U.S. Supreme Court

Design by Alicia Kovalcheck and Brian Margoosian. Text by Peter Shahin

In 2003, the University was a party to two landmark cases that will largely form the basis of the court’s consideration of affirmative action’s use. In these cases, bearing the name of former University President Lee Bollinger, Grutter v. Bollinger and Gratz v. Bollinger, the court found that certain forms of affirmative action are indeed legal, as long as they are autonomously approved by states.

At issue is the University of Texas’ “10-percent rule” that automatically admits every student in Texas who ranks in the top 10 percent of their high school class. According to Residential College Prof. Carl Cohen, Texas high schools still face de facto segregation, even if the 1954 Supreme Court ruling in Brown v. Board of Education outlawed segregation as an official policy. Enrollment of black students doubled and enrollment of Latino students increased by 50 percent since the state’s Legislature created the 10-percent rule in 1997.

Due to the segregation within K-12 education, the University of Texas’ plan was successful at creating a more diverse campus. However, the plaintiff 22-year-old Abigail Fisher, contends since the university used the 10-percent rule to achieve diversity, it wasn’t fair when the allocating of the remainder of the seats included race as a factor.

“The change in Court membership may well determine the outcome in Fisher as Justice Alito, who is expected to be firmly opposed to affirmative action, has replaced Justice O’Connor, who wrote the majority opinion in Grutter,” Law Prof. Richard Lempert wrote in an e-mail interview.

The two landmark cases involving the University began in the fall of 1997 with the admissions systems for undergraduates and the Law School. Jennifer Gratz and Patrick Hamacher, who were denied admission to the University as undergraduates in 1995, claimed they were the subject of racial discrimination due to affirmative action and that their rights to equal protection under the 14th Amendment were violated.

In 1997, Barbara Grutter, a white applicant to the University’s Law School, filed suit claiming that she, too, was subjected to racial discrimination since race was used as a predominant factor in her admissions review. She also sued under the protections provided by the 14th Amendment and the Civil Rights Act of 1964.

In 2003 Supreme Court drew a careful distinction between mechanical and holistic review processes. The University lost Gratz v. Bollinger, because the Court ruled that LSA’s use of a “points based” admissions criteria — in which admission candidates were given bonuses for being an ethnic minority — as unconstitutional. However, in Grutter v. Bollinger, the court held that the Law School’s use of race in a holistic perspective — rather than a mechanical awarding of points — was permitted, on the condition that race is to be considered along with the academic record and other achievements of the candidate.

“In the court’s view, the University’s prior practice of ‘protecting’ or ‘reserving’ seats for underrepresented minority applicants effectively kept non-protected applicants from competing for those slots,” then-Chief Justice William Rehnquist wrote in the majority decision from Gratz v. Bollinger, citing policies used by the University from 1995 to 1998. “This system, the court concluded, operated as the functional equivalent of a quota.”

In the wake of the Gratz ruling, the University reformed its undergraduate admissions policies to conform to the court’s opinion.

“Make no mistake — we will find the route that continues our commitment to a richly diverse student body,” University President Mary Sue Coleman said in 2003.

In 2006, 58 percent of Michigan voters elected to adopt Proposal 2, which banned the use of race as a consideration for admissions into institutions of higher education. Before Grutter v. Bollinger, African-American students comprised more than 10 percent of the student body. After Grutter v. Bollinger, black students comprised between 7 and 8 percent of the student body. After Proposal 2, it fell to just more than 5 percent. Today, the percentage of African-American students on campus has stabilized at about 5.5 percent.

Though Proposal 2 prevents the Supreme Court’s action from having a direct effect on the state of Michigan, Proposal 2 is itself under review by the U.S. Court of Appeals for the 6th Circuit en banc — where all of the judges will hear the case — after a smaller subset of the Sixth Circuit’s judges ruled that Proposal 2 was a violation of the 14th Amendment and the spirit of Gratz v. Bollinger and Grutter v. Bollinger.

The court’s final decision in Fisher v. University of Texas is not expected until April 2013, at the earliest.

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