In Grutter v. Bollinger—which upheld the constitutionality of the University of Michigan Law School’s race-conscious admissions practices in 2003—Justice O’Connor famously predicted in her majority opinion that the days when such programs would be considered constitutionally permissible were numbered: “25 years from now,” she opined, “the use of racial preferences will no longer be necessary to ensure diversity in public higher learning institutions.” Whether that lofty goal has indeed been met, the United States Supreme Court’s grant of the petition for certiorari in Fisher v. University of Texas, No. 11-345—which involves UT’s undergraduate admissions program—has led many commenters to predict the demise of such race-conscious admissions programs far sooner than Justice O’Connor contemplated.
UT modeled its admissions practices on those that passed constitutional muster in Grutter. As in Michigan, the Longhorns’ admission staff may consider an applicant’s race alongside a variety of other factors, including economic background, family history, and life experiences. Also like Michigan, UT seeks to admit a “critical mass” of minority students so that those students will not feel isolated or burdened with being considered “tokens” for their race. UT is different, however, because its consideration of race in admissions is considerably more limited than that approved in Grutter because UT’s role in the admissions process is constrained by virtue of Texas’s Top 10% Program.
Under the Texas Legislature’s Top 10% Program, UT is required to admit any applicant that graduates in the top 10% of his or her high-school class. Students from the Top 10% Program now comprise over 80% of the school’s incoming classes, leaving just 20% of each class to be determined by the university’s admissions staff under its race-conscious admissions policy. Thus, UT’s race-conscious admissions analysis results in the addition of only about 210 minority candidates in each class of 10,000. Supporters of the current approach suggest that the de-emphasis on race makes UT’s plan more constitutional—not less. But critics say the marginal impact of UT’s race-conscious program is precisely the problem; they argue that the race-neutral Top 10% Program is so successful in admitting minority students that the marginal impact of UT’s race-conscious program is not needed and cannot be constitutionally justified.
Ultimately, it appears that UT’s race-conscious admissions program may be doomed. The fact that the Court granted certiorari probably means that four justices strongly disagree with the outcome reached by the Fifth Circuit Court of Appeals—which upheld the constitutionality of UT’s program—and those justices must believe they have the votes to win. With Justice O’Connor’s departure from the Court, the apparent swing justice on the issue is Justice Anthony Kennedy, and many commentators think he is poised to do away with affirmative-action programs altogether. Look for Justice Kennedy to write the majority opinion in this case, and for the landscape of university admissions programs to potentially change quite dramatically.