By Terry Baynes
(Reuters) - The U.S. Supreme Court on Wednesday is set to hear arguments on whether colleges and universities can continue to favor minority candidates in admissions policies. Given that the court in 2003 approved such policies, its decision to take up the issue again suggests it may be looking to cut back on affirmative action.
The case before the court was brought by Abigail Fisher, a white woman who says the University of Texas denied her admission because of her race, in violation of the U.S. Constitution's equal protection guarantee. The university says it must consider race as a factor in admissions, or minorities will be underrepresented on its campuses.
Several factors are tipping the scales against affirmative action this time around: For starters, the makeup of the court has become more conservative in the past nine years. Seven states have banned affirmative action, while polls show the U.S. public has grown increasingly opposed to racial preferences.
The court often takes up cases to resolve conflicts between two or more federal appeals courts - but no such conflict exists here, which could mean the court is looking to reexamine its own precedent. In agreeing to hear the case, the justices brushed off an argument by the University of Texas that the court need not take up the matter, since Fisher has already graduated from another school.
One likely supporter of affirmative action, Justice Elena Kagan, has recused herself. She gave no reason, but it is likely she decided to step aside because she worked on the case in her previous job as U.S. Solicitor General.
That leaves eight justices to hear the case. Four conservatives, Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito, are expected to reject the University of Texas program. The fifth conservative, Anthony Kennedy, is often thought of as a swing vote. He has voted with the conservative wing on this issue in the past but has also acknowledged a need for racial diversity on campuses. A 4-4 tie would affirm the lower court, which rejected Fisher's challenge.
A broad ruling by the court could wipe out affirmative action programs in the 43 state school systems that still allow racial preferences, as well as those at thousands of private colleges and universities. The court could also rule narrowly and disallow only the Texas program, or it could approve the Texas approach.
HOW TEXAS DOES IT
The University of Texas fills most of its entering class of freshmen using a policy that grants automatic admission to in-state students in the top 10 percent of their high school class. For the remaining slots, it considers an applicant's race as one of many factors to improve diversity.
That approach stems from the university's fraught experience with affirmative action and its efforts to maintain diversity on campus. In 1996 a federal appeals court barred state universities in Texas, Louisiana and Mississippi from considering race as a factor when admitting students. That ruling, Hopwood v. Texas, caused minority enrollment at the University of Texas to plunge, with the number of black students falling by 40 percent, according to the university.
Marlen Whitley, a corporate lawyer in Houston who is black, says the effects of that decision were plain to see. Whitley was an undergraduate at the University of Texas at Austin when the 5th Circuit Court of Appeals handed down the Hopwood ruling. When he then entered the university's law school, the third-year class, whose members were admitted before the Hopwood decision, included 25 to 30 African Americans, he said. In the class ahead of him, the first to enter after Hopwood, there were four black students, and in Whitley's class there were eight.
"There were barely enough students of color to fill up one row of one of the lecture halls in the law school," said Whitley, one of 14 former student body presidents to file a brief for the University of Texas.
In response to the shrinking minority student population, the state legislature enacted its top 10 percent law, which took effect in 1998. Because Texas high schools tend to be each dominated by one racial grouping, depending on their location, the law effectively ensured that top minority students from their schools would gain entrance.
In 2003 the Supreme Court handed down its Michigan decision, which allowed the University of Michigan Law School to continue to consider race as one of many qualities that make an applicant more desirable.
Then, two years later, based on the Supreme Court ruling in the Michigan case, Texas colleges started using race as a factor to admit students who weren't chosen because they fell in the top 10 percent of their classes. For this group, the university considers race alongside a host of other factors such as extracurricular activities, family background and work experience.
For a graphic showing minority enrollment since 1996 at the University of Texas at Austin, the school at the center of the Fisher case, click http://link.reuters.com/qyv92t
In the current case, Fisher's claim that the Texas program is unconstitutional rests on the legal argument that, under the Equal Protection Clause, universities can use race only if there is no other way to improve diversity. Fisher argues that the top 10 percent law is sufficient for boosting racial diversity.
The University of Texas counters that the top 10 percent plan does not bring in enough minority students and that it needs to use race as a factor as it fills the rest of the class. It said the race-based process was responsible for 20 percent of all African American students and 15 percent of all Hispanic students admitted in 2008, the year Fisher was seeking admission.
Some opponents of racial preferences argue in a friend-of-the-court brief in the Texas case that the experience of California, where affirmative action is banned, shows that universities can maintain diversity with race-neutral methods.
California voters amended the state's constitution in 1996 to bar state universities from considering race in admissions. In response, the University of California adopted a program similar to the first prong of the Texas program, offering places to the top 9 percent of graduates from each state high school.
California has also sought to increase minority enrollment by reducing its reliance on standardized test scores and emphasizing other criteria such as low family income and being the first in a family to attend college. It also expanded its outreach efforts, working with schools in disadvantaged neighborhoods to better prepare students for college.
These efforts worked and minority enrollment at University of California schools is higher now than before the state banned affirmative action, said Richard Sander, a law professor at UCLA who filed a brief in the case along with Professor Stuart Taylor, a senior fellow at the Brookings Institution think tank.
Not everyone agrees that the measures in California have been sufficient. The University of California itself filed a brief in support of the University of Texas, saying the number of black students at its most selective campuses has not fully recovered from the ban on affirmative action.
If the Supreme Court decides to take race out of the equation entirely, the number of African American, Hispanic and Native American students at state universities would "drop precipitously," said Lee Bollinger, who was president of the University of Michigan at the time of the 2003 case and now is president of Columbia University in New York City.
Columbia is among dozens of selective private colleges that have filed briefs in the Fisher case, saying their racial diversity will suffer if the Supreme Court says race cannot be a factor in admissions. They argue that it is not possible for private institutions like Columbia and Harvard, which draw applicants from all over the country, to implement a percentage plan like the ones in Texas and California.
That argument could sway the Supreme Court to issue a narrow ruling that voids only the Texas program. But the court, more conservative than when Justice Sandra Day O'Connor wrote the University of Michigan decision in 2003, could reject race-based policies altogether.
O'Connor predicted that as universities grew more diverse, the need to consider race in admissions would expire in 25 years. She has since retired, and her replacement, Justice Alito, has opposed racial preferences and could help bring an earlier end to their use.
The focus of both sides during the oral arguments scheduled for Wednesday will likely be Kennedy, who voted against affirmative action in 2003, though he did not take as hard a stance as his conservative colleagues. In a dissent from the majority opinion that upheld racial preferences, Kennedy accused the majority of being too deferential to the University of Michigan.
"Were the courts to apply a searching standard to race-based admissions schemes, that would force educational institutions to seriously explore race-neutral alternatives," he wrote.
(Reporting By Terry Baynes; Editing by Eddie Evans, Eric Effron, Martin Howell and Douglas Royalty)
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