Fisher v. Texas Headed to High Court

Update, 1:45 p.m.: Bill Powers, president of the University of Texas at Austin, responded to the U.S. Supreme Court's decision to hear the affirmative action case in a statement, saying that the university "will vigorously seek a decision affirming the Fifth Circuit’s decision and reaffirming the educational benefits of diversity and our narrowly tailored holistic admissions policy."

While the top 10 percent rule drives most of the university's admissions, he wrote, "However, it is vital for the university to weigh a multitude of factors when making admissions decisions about the balance of students who will make up each entering class. We must have the flexibility to consider each applicant’s unique experiences and background so we can provide the best environment in which to educate and train the students who will be our nation’s future leaders."

Original story:

Two students who were denied admission to UT in 2008 hope to overturn a landmark 2003 U.S. Supreme Court opinion allowing the use of race in the admissions process at the Michigan Law School. Their defense is funded by the D.C.-based Project for Fair Representation, founded by former Houstonian and anti-affirmative-action crusader Edward Blum in 2005 to challenge what he regards as the unconstitutional use of race in public policy. 

After an applicant to the University of Texas law school successfully sued the state in the late '90s for its race-based admissions policy, the Legislature passed the top 10 percent rule, which became a racially neutral way to promote diversity. The university also used socioeconomic-based affirmative action. But after the 2003 decision came down, it reworked the policy to consider race as a factor in admitting students outside the top 10 percent.

Texas' 5th Circuit sided with the university in January of last year. The U.S. Supreme Court has proven narrowly divided over affirmative action cases in the past. It has two new justices — Sonia Sotomayor and Elena Kagan — since it last took up the issue of affirmative action in education, but Sandra Day O’Connor, who was the swing vote in the 5-4 Michigan case, has been replaced by the more conservative Samuel Alito. That means the the swing vote will likely go to Anthony Kennedy, who joined the dissent in the 2003 Michigan case, against race-based admissions. There's another twist: Kagan will recuse herself because she was U.S. solicitor general in 2010 when the federal government filed a brief with the 5th circuit in support of UT.

Two 2008 cases addressed the use of race by school districts to assign students to public schools. Parents Involved v. Seattle School District No. 1, decided along with Meredith v. Jefferson County Board of Education, was another 5-4 standoff that had Kennedy and Clarence Thomas concurring with a plurality opinion. The Parents Involved court took a critical approach to the use of race in a K-12 setting and struck down the districts' policies. However, in that case, Blum’s group filed an amicus brief specifically asking the court to overturn the Michigan cases that govern how race can be used in university admissions policies — and it declined. Chief Justice John Roberts, writing the plurality opinion, reiterated that while the case did not apply to public high schools, it still stood as good law on university admissions.