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Affirmative action in college admissions? Supreme Court to hear case

The U.S. Supreme Court is considering a case involving the University of Texas at Austin, a school that said it based its admissions policy on an earlier ruling about racial diversity in higher education. NBC's Pete Williams reports.

Updated at 1:04 p.m. ET: WASHINGTON -- In a potentially momentous case, the Supreme Court will once again confront the issue of race in university admissions in an appeal brought by a white student denied a spot at the flagship campus of the University of Texas.

The court said Tuesday it will return to the issue of affirmative action in higher education for the first time since its 2003 decision endorsing the use of race as a factor in freshmen admissions. This time around, a more conservative court is being asked to jettison that ruling and outlaw affirmative action in the university setting.


A broad ruling in favor of the student, Abigail Fisher, could threaten affirmative action programs at many of the nation's public and private universities, said Vanderbilt University law professor Brian Fitzpatrick.

The high court agreed to hear an appeal by Fisher, who was a high school senior when she applied but was rejected for admission in 2008 to the University of Texas at Austin.

Fisher filed a lawsuit with another woman who was also denied admission. They contended the university's race-conscious policy violated their civil and constitutional rights. By then, the two had enrolled elsewhere.

The other woman has since dropped out of the case and the state has said that Fisher is a senior at Louisiana State University whose impending graduation should bring an end to the lawsuit. But the Supreme Court appeared not to buy that argument Tuesday.

Most entering freshmen at Texas are admitted because they are among the top 10 percent in their high school class. The Texas policy applies to the remaining spots and allows for the consideration of race along with other factors.

Texas had dropped affirmative action policies after a 1996 appeals court ruling. But following the high court ruling in 2003, the university resumed considering race starting with its 2005 entering class.

Texas said its updated policy does not use quotas, which the high court has previously rejected. Instead, it said it takes a Supreme Court-endorsed holistic approach to enrollment, with an eye toward increasing the diversity of the student body.

Before adding race back into the mix, Texas' student body was 21 percent African-American and Hispanic, according to court papers.

By 2007, the year before Fisher filed her lawsuit, African-Americans and Hispanics accounted for more than a quarter of the entering freshman class.

Fisher contends the university's admissions policies discriminated against her on the basis of race in violation of her constitutional rights and the federal civil rights laws. She says many minority students who were admitted had lower grades and test scores than she did.

Her attorney urged the Supreme Court to reconsider its last ruling on the issue in 2003, when it reaffirmed that a diverse student population can justify use of race as one factor to help minorities gain admission to public universities and colleges.

But the makeup of the high court has changed since then. Justice Sandra Day O'Connor, who approved of the concept, has been replaced by the generally more conservative Samuel Alito.

Also, Justice Elena Kagan has taken herself off this case, because she worked on the issue while still at the Justice Department as a solicitor general. That takes a potential vote in favor of affirmative action off the court.

In its 2003 ruling, the Supreme Court upheld a University of Michigan Law School's use of race to favor minority applicants in the admissions process. In a 5-4 decision, the court ruled that the government has a compelling interest in diversity in public universities. That case was Grutter v. Bollinger.

At issue in both cases is whether and to what extent the Fourteenth Amendment’s guarantee of “equal protection of the laws” permits race to be used as a factor in efforts to achieve greater diversity in higher education. For more than three decades, the Supreme Court has said that although race may be one of numerous factors taken into account, it cannot be the predominant consideration in an admissions process.

Erwin Chemerinsky, a constitutional law scholar and dean of the University of California Irvine's law school, has called the Fisher case "potentially momentous." He says there are almost surely four votes -- John Roberts, Antonin Scalia, Clarence Thomas and Alito -- to overrule Grutter. That means the outcome could rest with Justice Anthony Kennedy's vote.

Fitzpatrick said two other states, California and Florida, use "top 10" plans similar to Texas' plan, although California law explicitly prohibits the consideration of race.

"But the vast majority of schools that are selective are using affirmative action, though they don't like to advertise it for fear of being sued," he said.

A three-judge federal appeals panel of the New Orleans-based 5th Circuit upheld the Texas program at issue in a January 2011 decision, saying it did not violate the 14th Amendment's equal-protection clause.

The Supreme Court could hear the case in October or the first week of November, in the final days of the presidential campaign.

Pacific Legal Foundation, a conservative law group that filed a friend-of-the-court brief urging the Supreme Court to take the case, applauded Tuesday’s announcement as "good news for everyone who believes in equal rights and equal opportunities.”

“Using race in admissions decisions, to achieve diversity, amounts to stereotyping people by their race,” PLF attorney Joshua P. Thompson said in a statement. “In the real world, shared skin color does not automatically translate into shared backgrounds or beliefs.  Racial diversity in a student body does not guarantee a diversity of experience and perspectives.  It is unrealistic and wrong to try to pigeon-hole people by their race."

The case is Fisher v. University of Texas at Austin, 11-345.

The Associated Press, Reuters and NBC News Chief Justice Correspondent Pete Williams contributed to this report.