The Supreme Court agreed Monday to hear next term a major affirmative action case concerning a program at a public university that takes race into consideration as one factor for admissions.
The decision marks the second time the Court has agreed to hear a challenge from a Texas woman, Abigail Fisher, targeting the admissions policies at the University of Texas.
Justice Elena Kagan took no part in the consideration of the case, presumably because she dealt with it in her former job as Solicitor General.
“I am very grateful that the Supreme Court will once again hear my case. I hope the justices will rule that UT is not allowed to treat undergraduate applicants differently because of their race or ethnicity,” Fisher said in a statement out shortly after the decision to rehear her case was announced.
In 2012, the justices heard the case and then declined to act for eight months while supporters of affirmative action feared the court was poised to curtail race conscious admissions programs. Ultimately, however, the justices issued a narrow decision asking the lower court to take another look at the efforts UT made to achieve diversity.
In 2014, a panel of the Fifth Circuit Court of Appeals upheld the program again and Fisher’s lawyers appealed once more to the high Court.
In Texas, high school seniors who graduate in the top 10 percent of their class are automatically admitted to any Texas state university.
In addition to the “Top Ten Percent” program, the school considers race and other factors for admission. Since Fisher did not qualify for the “Top Ten Percent” program, she applied with other non-Top 10 applicants, some of whom were entitled to racial preferences. Fisher, who is white, was denied admission.
In Court briefs, Fisher’s lawyers had urged the Court to take up the case, “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.”
Lawyers for the University defended the program and urged the Court not to take up the case in part because Fisher has since graduated from Louisiana State University.
The decision means that sometime next fall, the justices will tackle an issue that has divided them in past cases.
Last term, a divided court upheld Michigan’s voter approved ban on race based admissions programs at public colleges that was passed in 2006 with 58 % of the vote, over a stinging dissent written by Justice Sonia Sotomayor. “The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.”