Supreme Court Agrees to Hear Affirmative Action Case

Adam Liptak, New York Times, February 21, 2012

The Supreme Court on Tuesday agreed to hear a major case on affirmative action in higher education, adding another potential blockbuster to a docket already studded with them.

The court’s decision in the new case holds the potential to undo an accommodation reached in the Supreme Court’s 5-to-4 decision in 2003 in Grutter v. Bollinger: that public colleges and universities could not use a point system to boost minority enrollment but could take race into account in vaguer way to ensure academic diversity.

Justice Sandra Day O’Connor, who wrote the majority opinion in Grutter, said the accommodation was meant to last 25 years.

The court’s membership has changed since 2003, most notably for these purposes with the appointment of Justice Samuel A. Alito Jr., who replaced Justice O’Connor in 2006. Justice Alito has voted with the court’s more conservative justices in decisions hostile to the use of racial classifications by the government.

“There thus seem five votes—Roberts, Scalia, Kennedy, Thomas and Alito—to overrule Grutter and hold that affirmative action programs are unconstitutional,” Erwin Chemerinsky, dean of the law school at the University of California, Irvine, wrote in a recent book, “The Conservative Assault on the Constitution.”


The new case, Fisher v. Texas, No. 11-345, was brought by Abigail Fisher, a white student who said she was denied admission to the University of Texas because of her race. The case has idiosyncrasies that may limit its reach, but it also has the potential to eliminate diversity as a rationale sufficient to justify any use of race in admissions decisions.


Justice Elena Kagan disqualified herself from hearing the case, presumably because she had worked on it as solicitor general. Arguments in the case will be heard during the court’s next term, which starts in October.

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  • JohnEngelman

    Those currently applying for college were born well after the civil rights legislation was signed into law. The old alibi is no longer relevant. 

  • This Texas policy was George W. Bush’s genius piece of work.  What it means is that if you’re white going to an elite white high school that is all white and high IQ, and you finish 5th in a graduating class of 40, you don’t get into the University of Texas.  But if you’re Hispanic, and you go to Taco High School and finish 40th in a class of 400, even though you’ve never read anything longer than a comic book, you will get in.

    Hate to be the bearer of bad news, but I don’t like our side’s chances at SCOTUS in this case.  The problem is, you know the liberal judges will rule for Texas.  So we would need Roberts-Alito-Thomas-Scalia plus someone else to vote for Miss Fisher.  Here’s the rub — I don’t think that any one of these four SCOTUS judges, much less all four, will rule for Miss Fisher, because I don’t know what they’re going to use for Federal Constitutional grounds to rule against Texas.

    One could say “disparate impact,” but that’s only a line of judicial reasoning that liberal judges like; conservatives disapprove of it, so I don’t think they would start now just because the tables are sorta turned.

    • Anan7

      There is a quote from Chief Justice Roberts: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

      Perhaps this bodes well for our side.  Still I am not getting my hopes up.  The government has been hard at work destroying white America since 1965.

      • Problem is, that case and this one aren’t the same.  The Roberts quote came from a case involving a public school actually using a racial classification.  Unless there’s something behind the scenes I’m not seeing, this thing in Texas only involves class rank.  Of course, we both know the real reason for the policy, but it’s not in the nature of conservative judges to prostrate themselves to disparate impact.

  • eonsmadcat

    UT is one of the worst colleges in Texas to send your son or daughter to. Over the years, it has gotten more and more liberal until it almost resembles a Marxist indoctrination camp. I’d like to get a few bets going on how much longer the statues  of Lee, Davis, Albert Sydney Johnston, and Washington will be allowed to stand on the mall.  The Law School is host to Sanford Levinson a leading proponent of a (socialist) revision to the US constitution (Elana Kegan endorsed his book ‘ Our Undemocratic Constitution ‘ ) and he also wrote a book entitled ‘ Written in Stone’ in which he advocates the removal of all anachronistic statuary in town squares and other public places. I’m sending my son to Texas AM, but alas they aren’t too far behind UT in pushing a multicultural agenda.

    • Anan7

      What schools aren’t multiculturalist these days?  Seriously?

      Whites are a diminishing minority at my graduate school.

      • This_Name_Doesnt_Exist

        All that’s left is Hillsdale.

  • crystal evans

    Ms. Fisher could have gone to a two year college or to another four year college and then transfer to the University of Texas. If she graduated, her diploma will read University of Texas so she would be a graduate of the University of Texas regardless of whether she went there for four years or two years.

    • radical7

      Exactly. That is why it is going to be difficult for her attorneeys to prove their case.

  •    In his State of the Union speech of January 2012 President Obama declared:
    “Let’s never forget:  Millions of Americans who work hard and play by the rules every day deserve a government and a financial system that do the same.  It’s time to apply the same rules from top to bottom.  No bailouts, no handouts, and no copouts.”
       Affirmative action is a bailout, a handout, and a copout.  Affirmative action means we do not play by the same rules.  There are rules of whites, different ones for Blacks, another set for Hispanics, etc.  Obama DOES NOT want us to play by the same rules.  That is why his Department of Justice pushes even more discrimination against whites.
       While the Democrats demand the anti-white discrimination, the Republicans are too often silent – or worse.
       One hopes the Supreme Court rules in favor of equal opportunity and against affirmative action.  One hopes the Democrats lose.  But will a Republican win be a win for equal rights for whites?  

  •  This will certainly be a difficult case.

    If the Supreme Court ruled in favor of affirmative action in the past case, chances are that one of the most “moderate” of the “conservative” justices will jump ship and join the liberals, ostensibly for the sake of “stare decisis” – to uphold what has already been established as legal precedent. In order for this ruling to strike down race-based college admissions, the plaintiff will need to successfully argue why this particular case is different from the one on which the Supreme Court has already ruled.

    I’m certainly not holding my hopes up.  I can’t see the Supreme Court reversing itself. Especially not so close to its last decision on the issue.

  • This year’s presidential election is not just about the federal executive branch, but also about the federal judiciary, esp SCOTUS.

    “Vote for ABBO!” (any body but Obama)

    • Prima_Morte

      I agree with your post about this election, but “ABBO” was Australian slang for “aborigine” when I was there in the 1980’s.

      Let’s NOT vote for the “abbo,” this time around…mate!

  • Christopher_Nelson

    “Will the 2003 “diversity” decision be overturned? ”

    I doubt it.

    The Supreme joke is like anything else now adays. It’s PC.  And we have only gotten worse since 2003.

  • crystal evans

    In order to produce more college graduates, more universities have a list of courses that transfer students must take in order to transfer to the university and the university will accept all of these credits and the student will transfer in as a junior. My niece went to a two year college in California. There was a program at the college she attended where if you took a list of prescribed classes and got at least a 3.0 gpa, she would receive an automatic admit to UC San Diego.

    • Many states’ public four-year universities and public two-year colleges have relatively generous transfer program, as long as it’s within the same state.  Where it’s falling down is earning college credit in high school from methods that don’t involve taking an actual college course, such as AP — Schools weren’t about to let someone into their school was already one-fourth of the way to an undergraduate degree before they moved their lamps into the dorm room for the first time, (less tuition money, don’t you know?), so they don’t recognize credits from AP classes. 

  • slobotnavich

    John Wilkes Booth had no idea of the long term impact of his assassination of Lincoln, who had no illusions of black-white equality and intended to remove as many of them as possible from the American republic. He actually dispatched envoys to several Central American and Caribbean nations to investigate the possibility of relocating some of them there.  His inquiries were met with wild indignation by the inhabitants of these nations, particularly from El Salvador and Nicaragua, who threatened armed resistance to any attempts to land blacks from the US to their countries.

    This is a little known but still available facet of American post-Civil War America. One can only speculate as to what might have happened had Booth missed.

  • rentslave

    Make sure to have plenty of food on hand if the decision goes against the 85 IQ kids.

  • Most of the other news sites say that Ruth Bader Gingsburg, Elena Kagan, and Stephen Breyer will vote to retain Affirmative Action.

    They all seem to have something in common…

    • radical7

      Elena Kagan has recused herself from the case given the fact that she served as counsel in the 2003 Grutter case.

      You need to be careful about what websites you get your information from. 

      • That’s what happens if you’re a President and you’re dumb enough to put your own Solicitor General on the Supreme Court.  She’s going to have to recuse herself quite a bit in the next 5-10 years.