By Joan Biskupic
WASHINGTON (Reuters) - The U.S. Supreme Court on Wednesday will again take up the highly charged question of race in admissions to public universities, hearing arguments for the second time from a white woman who claimed that a University of Texas policy caused her to be rejected in favor of less qualified blacks and Hispanics.
In the three years since the justices last heard the case and sent it back to a lower court for more scrutiny of the university's rationale for considering an applicant's race, legal battles over admissions have intensified.
The conservative advocates behind the Texas challenge have separately mounted an even more sweeping lawsuit against the nation’s most iconic private university, Harvard.
In a twist on the Fisher case, the Harvard lawsuit asserted that Asian Americans have been particularly hurt by affirmative action programs in university admissions. A similar case has been filed against the University of North Carolina.
These new Asian-American cases, which both sides believe are destined for the Supreme Court, could ultimately have greater national consequence than the Texas dispute because they take aim at the landmark decision that first upheld campus affirmative action, a policy under which minorities historically subject to discrimination are given certain preferences.
That 1978 ruling in the case Regents of the University of California v Bakke, forbade quotas but allowed race to be used as one admissions factor among many.
Lawyers for Abigail Fisher, the woman who challenged the University of Texas policy, do not question the Bakke decision or a major 2003 ruling in a University of Michigan case that affirmed it. Rather, they make the narrower argument that Texas could have accomplished its diversity goals with a policy that did not look at race.
The state of Texas enrolls most freshmen at the Austin campus of its flagship public university by guaranteeing places to the top 10 percent of a high school graduating class. A supplemental diversity policy looks beyond grades to a range of attributes including race.
A ruling in the Fisher case might not apply to schools that have other systems that take applicants' race into consideration.
A BOLDER CLAIM
The backers of the newer Asian American cases make a bolder claim. They argue that the Bakke decision was wrong and that using race in any way in admissions violates the U.S. Constitution's guarantee of equal protection under the law.
The cases were organized by conservative legal activist Edward Blum, who has launched more than a dozen lawsuits over the past 25 years against race-based policies and initially recruited Fisher, the daughter of a friend.
Blum's newer cases are largely on hold in federal district courts until the justices rule in the Texas dispute. Harvard and the University of North Carolina are among the scores of universities that have submitted "friend of the court" briefs on behalf of the University of Texas.
In its filing, the University of Texas argued that because of lingering patterns of racial segregation in state high schools, the "top ten" method does not generate a sufficient mix of students. It also disputed whether Fisher, based on her high school record, would ever have been admitted through the separate broader student review.
The university added that the Austin campus has been reminded of “the continuing relevance of race” by such incidents as the June shooting deaths of nine black people at a church in Charleston, South Carolina, by a man who expressed white supremacist views.
Fisher’s lawyers said Texas has not shown that the "top ten" method produces insufficient diversity, and they argue that if administrators want more of a mix they could consider race-neutral factors such as family income.
The Supreme Court’s conservative majority has said that racial remedies can themselves foster conflict. In 5-4 rulings, the court in recent years has curtailed policies intended to protect blacks and Hispanics under public-school integration plans, municipal employee promotion exams and voting practices.
Wednesday’s arguments will be heard by eight of the nine justices. Liberal justice Elena Kagan, who was U.S. solicitor general in the Obama administration when it backed Texas in lower court litigation, is not participating.
(Reporting by Joan Biskupic; Editing by Amy Stevens and Will Dunham)