A Changed Court Revisits Affirmative Action in College Admissions

When the court hears a new challenge on Wednesday, the decisive vote will almost certainly be that of the court’s current swing member, Justice Anthony M. Kennedy. But Justice Kennedy dissented in the 2003 decision, Grutter v. Bollinger, and he has never voted to uphold an affirmative action program. There is thus reason to think the earlier decision is in peril.

The parties in the new case, Fisher v. University of Texas, No. 11-345, certainly seem to believe they must have Justice Kennedy’s vote to win. They each cited him by name about 20 times in their main briefs.

Justice O’Connor, who retired in 2006, wrote in the Grutter decision in 2003 that she expected it to stand for 25 years. Changes in the court’s personnel since then, notably her replacement by Justice Samuel A. Alito Jr., may speed up that timetable.

The new case was brought by Abigail Fisher, a white woman who said she had been denied admission to the University of Texas on account of her race. Ms. Fisher, 22, recently graduated from Louisiana State University and works as a financial analyst in Austin, Tex.

In their brief, Ms. Fisher’s lawyers reminded Justice Kennedy of his discomfort with the very ideas of racial preferences. “Preferment by race, when resorted to by the state,” they wrote, quotingJustice Kennedy’s dissent in Grutter, “can be the most divisive of all policies, containing within it the potential to destroy confidence in the Constitution and in the idea of equality.”

In its own brief, the university said that Justice Kennedy had left himself plenty of room to rule in its favor.

“U.T.’s policy lacks the features that Justice Kennedy found disqualifying in Grutter,” the university’s lawyers wrote. “It is undisputed that U.T. has not established any race-based target; race is not assigned any automatic value; and the racial or ethnic composition of admits is not monitored during the admissions cycle.”

The university also cited Justice Kennedy’s 2007 concurrence in Parents Involved in Community Schools v. Seattle School District No. 1, which limited the ability of public school districts to take race into account in assigning students to schools to achieve integration. The concurrence, which agreed that the plans at issue were unconstitutional, nonetheless revealed a fault line between Justice Kennedy and his four more conservative colleagues.

Justice Kennedy wrote that Chief Justice John G. Roberts Jr.’s opinion for four justices suffered from an “all-too-unyielding insistence that race cannot be a factor in instances when, in my view, it may be taken into account.”

Chief Justice Roberts, who has been intensely skeptical of government programs that classify people by race, wrote in the 2007 decision that “racial balancing is not transformed from ‘patently unconstitutional’ to a compelling state interest simply by relabeling it ‘racial diversity.’ ”

Justice Kennedy responded that the government had an interest in “avoiding racial isolation” and addressing “the problem of de facto resegregation in schooling.”

“Diversity, depending on its meaning and definition, is a compelling educational goal,” he wrote. Perhaps most important, Justice Kennedy wrote, in a passage featured in the university’s brief, “First Amendment interests give universities particular latitude in defining diversity.”

Trying to predict how Justice Kennedy will vote in the new case is complicated by the idiosyncrasies of the University of Texas’ admissions system. Three-quarters of applicants from Texas are admitted under a program that guarantees admission to the top students in every high school in the state. That program is not directly at issue in the case.

Students from Texas who missed the cutoff, like Ms. Fisher, and those from elsewhere are considered under standards that take account of academic achievement and other factors, including race and ethnicity. The case concerns that second aspect of the admissions program.

The Supreme Court has four basic options. It could decline to decide the central issue in the case at all if it credits the university’s argument that Ms. Fisher did not suffer the sort of injury that gives a plaintiff standing to sue.

It could uphold the Texas program as constitutional. It could say that race-conscious admissions may not be used where race-neutral ones, like the one used to select the bulk of the class in Texas, have produced substantial diversity.

Or it could overrule Grutter and say race may not be used in admissions decisions at all.

A decision forbidding the use of race at public universities would almost certainly mean that it would be barred at most private ones as well under Title VI of the Civil Rights Act of 1964, which forbids racial discrimination in programs that receive federal money.

There is one additional complication. Justice Elena Kagan has disqualified herself, presumably because she had worked on the case as solicitor general. That leaves open the possibility of a 4-to-4 tie, which would have the effect of affirming a lower-court decision upholding the Texas program.