Posted on February 15, 2012

Affirmative Action — Could Justice Alito’s Vote Change the Game?

Ariane de Vogue, Yahoo! News, February 15, 2012

The Supreme Court could decide this week whether to delve into yet another hot-button social issue: affirmative action.

At issue is a lawsuit brought by Abigail Fisher, a white student, who said she was denied admission to the University of Texas because of the color of her skin. If the justices vote to hear the case, it could mean a majority of the court is willing to curtail or further restrict race-conscious admissions policies at public universities.

The court is set to discuss the case in its closed-door conference this week and could announce as early as Friday whether it will add the case to next term’s docket.

“This case presents the court with an opportunity to clarify the boundaries of race preferences in higher education, or even reconsider whether race should be permitted at all under the Constitution’s guarantee of equal protection,” said Edward Blum, the director of the Project on Fair Representation, a nonprofit legal defense foundation that has provided legal counsel for Fisher.


It was only in 2003 that the Supreme Court took up a similar affirmative action case and narrowly upheld the limited use of race as a factor in law school admissions.

Justice Sandra Day O’Connor wrote the 5-4 decision — Grutter v. Bollinger — and held that the government has a compelling interest in diversity in public universities.

“The Equal Protection Clause does not prohibit the [University of Michigan] Law School’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body,” O’Connor wrote in a decision joined by Justices John Paul Stevens, Ruth Bader Ginsburg, David Souter and Stephen Breyer.

But a lot has changed since then. Most importantly for this case, Justice Samuel Alito has replaced O’Connor on the Supreme Court.

“The addition of Justice Alito to this court adds an element to the case that would not likely have been there with Justice O’Connor. The difference is that Justice Alito has shown himself in other cases to be more skeptical of racial classifications and preferences than did Justice O’Connor,” said Blum.