“The law had applied to nine states — Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia — and to scores of counties and municipalities in other states, including Brooklyn, Manhattan and the Bronx.
Chief Justice Roberts wrote that Congress remained free to try to impose federal oversight on states where voting rights were at risk, but must do so based on contemporary data. But the chances that the current Congress could reach agreement on where federal oversight is required are small, most analysts say.
In the case, Fisher v. University of Texas, a white student argues that the University’s affirmative action policy cost her a spot in the school. The policy provides admission for those in the top 10 percent of their Texas high schools. Abigail Noel Fisher did not make that cut and was put in a pool of applicants in which race is considered a factor in admissions, along with others like leadership qualities, test scores, community service and work experience. She still didn’t get in.
Fisher argues goes beyond what the Court has said is acceptable in considering race in admissions because UT’s race-neutral policy for the top 10 percent already brings in higher percentages than those considered in the 2003 Grutter v. Bollinger decision. In Grutter,Justice Sandra Day O’Connor writing for the 5-4 majority said the University of Michigan’s law school could consider race as part of a holistic evaluation of an applicant. O’Connor said the government had a compelling interest in diversity, including seeking a “critical mass” of minority students.
The students that are automatically accepted to UT account for the vast majority of the freshman classes, with about 30 percent of enrolling students from underrepresented minorities. But, to their credit, UT officials do not feel that is enough for a state where there will soon be no majority race. After the Grutter decision, UT decided to start considering race along with other factors.
There’s reason to think affirmative action programs could be in trouble with the Roberts Court. Justice O’Connor, the key swing vote in Grutter, has been replaced with arch-conservative Justice Samuel Alito and Justice Elana Kagan has recused herself from this case, presumably because of her previous job as President Obama’s solicitor general. The Obama administration has supported Texas in the case and has advised colleges and universities that under the court’s 2003 decision they may still make some race-based decisions to expand campus diversity.
The Court will hear the case in the October term, meaning a decision will likely be an issue in the fall elections.