By Joan Biskupic
WASHINGTON (Reuters) - Thirty-five years after the Supreme Court set the terms for boosting college admissions of African Americans and other minorities, the court may be about to issue a ruling that could restrict universities' use of race in deciding who is awarded places.
The case before the justices was brought by Abigail Fisher, a white suburban Houston student who asserted she was wrongly rejected by the University of Texas at Austin while minority students with similar grades and test scores were admitted.
The ruling is the only one the court has yet to issue following oral arguments in cases heard in October and November, the opening months of the court's annual term which lasts until the early summer. A decision might come as early as Monday, before the start of a two-week recess.
As hard as it is to predict when a ruling will be announced, it is more difficult to say how it might change the law. Still, even a small move in the Texas case could mark the beginning of a new chapter limiting college administrators' discretion in using race in deciding on admissions.
For decades, dating back at least to the John F. Kennedy administration of the 1960s, leaders have struggled with what "affirmative action" should be taken to help blacks and other minorities. In the early years, it was seen as a way to remedy racial prejudice and discrimination; in the more modern era, as a way to bring diversity to campuses and workplaces.
Since 1978, the Supreme Court has been at the center of disputes over when universities may consider applicants' race. In that year's groundbreaking Bakke decision from a University of California medical school, the justices forbade quotas but said schools could weigh race with other factors.
In another seminal university case, the court in 2003 reaffirmed the use of race in admissions to create diversity in colleges. But with the current bench more conservative than the one in 2003, there is a strong chance a majority of the justices will undercut that decade-old ruling on a University of Michigan case.
Writing for the majority in that case, Grutter v. Bollinger, Justice Sandra Day O'Connor declared that "the path to leadership" should be "visibly open to talented and qualified individuals of every race and ethnicity." That meant public universities must be able to take special steps to enroll minorities, O'Connor wrote.
O'Connor retired in January 2006 and her successor as the regular swing vote on racial dilemmas has been Justice Anthony Kennedy, who dissented in the 2003 case and may well author the ruling to come in the latest case. The student in the case, Abigail Fisher, graduated from Louisiana State University last year.
Notably, during oral argument in the University of Texas case on October 10, Kennedy referred to the "hurt" and "injury" caused by screening applicants by race. However, Kennedy's comments during arguments suggested that he was not ready to vote to forbid all racial criteria in admissions.
In his dissenting opinion in the 2003 Michigan case, he wrote that the court has long accepted universities' stance that racial diversity enhances the educational experience for all students, while insisting such policies be narrowly drawn.
Kennedy's view of when exactly race can be considered and of the discretion of college administrators in the matter are likely to be crucial.
Marvin Krislov, now president of Oberlin College in Ohio and a past vice-president and general counsel of the University of Michigan, said on Friday that university administrators were concerned about how broadly it might sweep and whether it will ultimately reduce the number of minority students on campus.
"Colleges and universities care deeply about student body diversity," he said, adding of his colleagues in higher education: "We're all watching and waiting."
Once oral arguments are held, the court's deliberations on a case are shrouded in secrecy. The timing of a particular decision is not known in advance. And racial dilemmas have never been easy for the court, a point underscored by the current delay.
When the justices ruled in the 1978 case Regents of the University of California v. Bakke, they issued six separate opinions. None drew a majority. Four justices would have upheld a program that set aside a certain number of slots for minority applicants; four justices would have struck it down. Justice Lewis Powell provided the essential fifth vote, allowing universities to consider race and ethnic origin but forbidding quotas or a reserved number of places. Powell planted the seed of the diversity justification that blossomed in O'Connor's opinion in 2003.
The Michigan case divided the bench 5-4, with O'Connor joining with the more liberal members of the bench to allow race as a consideration in admissions. In a 2007 dispute testing the use of race in student placements to ensure diversity in school districts, the court tipped the opposite way. Conservatives, including O'Connor's successor Samuel Alito, curtailed such public school integration plans.
Only eight of the nine justices will be deciding the Texas case. Justice Elena Kagan, a former U.S. solicitor general, has taken herself out of the dispute because of her prior involvement in the case. The government is siding with the University of Texas.
The challenged program supplements a Texas state policy guaranteeing admission to the university for high school graduates scoring in the top 10 percent at their individual schools. University of Texas administrators argue that the "Top 10" program does not make the university sufficiently diverse.
The Texas approach, with the dual programs, is distinct. The larger issue is how a decision would affect other universities.
"The court seems to have been leaning away from allowing affirmative action for some time," said University of Virginia law professor John Jeffries, a former law clerk and biographer of Justice Lewis Powell. "If they close the door that, potentially, is a very big deal."
(Editing by Howard Goller, Martin Howell; desking by Christopher Wilson)
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