Supreme Court to Revisit Race in College Admissions

This from the School Law Blog:

The U.S. Supreme Court agreed on Tuesday to hear a major new case involving the consideration of race in college admissions, in a dispute being closely watched by the K-12 community.

The justices agreed to hear a challenge to a program in which the University of Texas at Austin considers race as one factor for admission after Texas students from the top 10 percent of their high school classes claim undergraduate places guaranteed by a state law.

The court's decision to take up the case comes just two months after President Obama's administration issued informal legal guidance to colleges and K-12 schools emphasizing ways they could still permissibly take race into account in admissions and assigning students to schools.

The case of Fisher v. University of Texas at Austin (No. 11-345) will be heard next term. Justice Elena Kagan will not participate; she was U.S. solicitor general in 2010 when the Obama administration filed a brief in the case in a lower court.

The university reinstated race consideration after the Supreme Court upheld a race-conscious admissions program at the University of Michigan Law School in a 2003 decision known as Grutter v. Bollinger.

Before then, the state had been barred from using race in admissions by a 1996 decision by the U.S. Court of Appeals for the 5th Circuit known as Hopwood v. Texas. In response to that decision, the state adopted its Top Ten Percent law, which was designed to boost racial and socioeconomic diversity at University of Texas campuses without express consideration of those factors in the admissions process.

The post-Grutter program is designed to augment the Top Ten Percent law by considering race as a factor in remaining freshman class places at the university. That program was challenged by two white students, Abigail Fisher and Rachel Michalewicz, who were denied admission to the 2008 entering class at the UT main campus in Austin.

A federal district court in Austin upheld the race-conscious program in 2009. In a January 2011 decision, a three-judge panel of the New Orleans-based 5th Circuit agreed that the program did not violate the 14th Amendment's equal-protection clause.

"We are satisfied that the university's decision to reintroduce race-conscious admissions was adequately supported by the 'serious, good faith consideration' required by Grutter," U.S. Circuit Judge Patrick E. Higginbotham said in the main opinion.

Higginbotham said the Supreme Court's 2007 decision in Parents Involved in Community Schools v. Seattle School District, which limited the ways K-12 schools could consider race in assigning students to schools, did not retreat from the 2003 Grutter decision's emphasis on a "holistic university admissions program." ...