WHEN THE SUPREME COURT, in the 2003 case of Grutter v. Bollinger, narrowly upheld the use of racial preferences at the University of Michigan Law School, it emphasized that such preferences were barely tolerable under the Constitution. They could be used only as a last resort, the court ruled, they must not unduly harm non-minorities, and public universities had to start finding ways to phase them out.
"We are mindful … that '[a] core purpose of the Fourteenth Amendment was to do away with all governmentally imposed discrimination based on race,'" Justice Sandra Day O'Connor wrote for a 5-4 majority. "Accordingly, race-conscious admissions policies must be limited in time…. We see no reason to exempt race-conscious admissions programs from the requirement that all governmental use of race must have a logical end point…. We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today."
But eight years later, race-based admissions show no sign of moving toward "a logical end point." If anything they are more entrenched than ever. Far from using skin color as a last resort, many universities make it an explicit condition – as Abigail Fisher, a white high school senior, discovered when she applied to the University of Texas in 2008. Roughly one-fifth of the freshman class is selected according to a formula that takes race into account; when Fisher was rejected she sued the university on the grounds that its racial preferences violate the 14th Amendment's Equal Protection Clause. Relying on Grutter, the Fifth Circuit Court of Appeals upheld the university's policy. Now Fisher is appealing to the Supreme Court.