Justices asked to reconsider race in college admissions

Richard Wolf
Abigail Fisher, who sued the University of Texas over the use of racial preferences, outside the Supreme Court on Oct. 10, 2012, after her first case was heard. She may be back next year.

WASHINGTON -- One of the Supreme Court's most consistently vexing issues -- the use of racial preferences in college admissions -- may be returning yet again.

The new challenge is a repeat performance of an old one against the University of Texas' affirmative action policy, which includes race as one of many factors in rounding out its academic class.

Attorneys for Abigail Fisher, who contends she was denied admission because she is white, asked the justices on Tuesday to hear her case for a second time. In 2013, the court sent her challenge back to the U.S. Court of Appeals for the 5th Circuit, so that judges there could more closely scrutinize the university's policy.

That court once again upheld the school's limited use of racial preferences -- something the Supreme Court's conservatives may not have expected when they sent the case back. Now it will be up to those same conservatives whether to take up the issue again.

The Supreme Court also has pending challenges to affirmative action policies at Harvard University and the University of North Carolina, brought by an organization called Students for Fair Admissions -- and backed by Edward Blum, the same opponent of racial preferences who organized Fisher's case. That makes it more likely the justices will agree to hear at least one of the cases.

Repeat performances on major issues have become standard fare at the court this year. The justices have granted new cases on same-sex marriage, voting rights, housing discrimination, lethal injections and President Obama's health care law, among others.

The potential return of the Texas affirmative action case comes as little surprise. After it was first heard in October 2012, the justices labored for more than eight months before releasing a non-controversial, 7-1 ruling that gave Fisher another chance in the lower court.

"The Court of Appeals must assess whether the university has offered sufficient evidence that would prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity," Justice Anthony Kennedy wrote for the expansive majority, which included Justice Sonia Sotomayor, a product of affirmative action policies.

The school's policy is two-tiered: It accepts the top 10% of the class from nearly every high school in the state for admission to its flagship campus in Austin. That guarantees some racial diversity because of the pattern of housing segregation. Then, to fill out each year's freshman class, the school looks at a range of other factors -- including race.

The appeals court once again upheld that policy in July -- five years after the university's first legal victory in federal district court. "To deny UT-Austin its limited use of race in its search for holistic diversity would hobble the richness of the educational experience," the court's 2-1 majority said.

In her new Supreme Court petition, Fisher calls that search "an amorphous and unbounded pursuit."

"The court should grant the petition, strike down UT's unjustified use of race, and once again make clear that the Equal Protection Clause does not permit the use of racial preferences in admissions decisions where, as here, they are neither narrowly tailored nor necessary to meet a compelling, otherwise unsatisfied, educational interest," her lawyers said.

The justices last ruled on affirmative action in April, when they upheld the right of states to ban racial preferences in university admissions. That 6-2 decision came in a case brought by Michigan, where a voter-approved initiative banning affirmative action had been tied up in court for a decade.

Seven other states — California, Florida, Washington, Arizona, Nebraska, Oklahoma and New Hampshire — have similar bans. But the ruling did not jeopardize the wide use of racial preferences in many of the 42 states without bans, including Texas.