With the U.S. Supreme Court’s decision this to hear an affirmative action case against the University of Texas, the university’s policies are once again poised to become a flashpoint in national discourse about the proper role of race in college admissions.
The case involves two white students who were denied admission to UT in 2008 when they fell barely out of the top 10 percent of their high school classes. They hope to overturn a landmark 2003 Supreme Court opinion allowing the use of race in the admissions process at the Michigan Law School.
Their case is funded by the Washington-D.C. based Project on Fair Representation and the group’s choice of Texas as a setting for the challenge to affirmative action is no accident. Opponents of affirmative action regard the state as an ideal incubator for litigation to overturn race-based admission policies. That’s because between 1996 and 2003, UT was forced to find racially neutral ways to promote diversity on campus after the Texas Supreme Court overturned its original race-based admissions policy.
The Legislature responded by passing the top 10 percent rule, which successfully increased the number of minorities at the school. 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, who will recuse herself from the case — 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issue of affirmative action in education, but Sandra Day O’Connor, who was the swing vote in the 5-4 Michigan case, has been replaced by the more conservative Samuel Alito.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 swing vote will likely go to Anthony Kennedy, who joined the dissent in the 2003 Michigan case, against race-based admissions — and what could be the end of the policy.