Only nine years after Grutter v. Bollinger (2003), the Supreme Court ruling that upheld the limited use of race when considering applications to the Michigan Law School, the issue of affirmative action in university admissions policy was reconsidered yesterday. While it is not uncommon for issues to be revisited by the Supreme Court, the short time span between cases is unusual, particularly in light of the language used in the Grutter decision which posited affirmative action in higher education would not be needed within 25 years.
Abigail Fisher, the plaintiff, applied to the University of Texas-Austin under the Top Ten Percent plan, which allowed all students in the top 10 percent of their graduating class to be automatically admitted to the university. Not meeting this requirement, Fisher was required to apply for admission for a position in the remaining 20 percent.
The issue argued by the plaintiff was not that the Top Ten Percent percent violated the criteria established in Grutter, as it is considered race neutral, but rather the use of race in the remaining 20 percent did not meet the standards of strict scrutiny.
As the New York Times points out, the two main questions raised by Chief Justice John Roberts were (1) how much diversity is needed and (2) when would the diversity threshold would be met. The defense chose to use a demurrer in response to the Chief Justice’s questions, essentially punting them. Instead, they argued the case should be thrown out because the plaintiff did not have standing after having graduated from Louisiana State University. The counter point made by the plaintiff was that the remaining 20% criteria was in violation of Grutter, as well as failing to be the standard of strict scrutiny.
The ruling, as is typical in many cases, will be most likely be divided between the conservative and liberal blocs. For the conservatives to write the majority opinion, Justice Kennedy will most likely need to join the four member bloc. Otherwise, there will likely be a 4-4 division of the participating Justices; thus, upholding the lower court’s decision.
The implications of the decision are significant. If the lower court’s decision, which did not force the 10 percent plan to be dismantled, is upheld, the Grutter criteria will still be valid. But if the lower court’s decision is struck down, the consideration of race in admissions will be curtailed. The importance of this decision should make all of us education policy wonks eagerly wait until the summer when we will know the future of affirmative action in higher education.