WASHINGTON, Feb 21 (Reuters) - The U.S. Supreme Court
said on Tuesday it would decide whether a state university may
consider an applicant's race to achieve a more diverse student
body, revisiting in an election year a divisive social issue it
last addressed nine years ago.
Adding to blockbuster cases on President Barack Obama's
healthcare law and on Arizona's immigration crackdown, the high
court agreed to hear an appeal by a white female applicant who
was denied undergraduate admission in 2008 to the University of
Texas at Austin.
Abigail Fisher challenged the university admissions policies
for discriminating against her on the basis of race in violation
of her constitutional rights and the federal civil rights laws,
putting the court at the center of the debate over such programs
in higher education.
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.
Since 2003, the court, with the addition of Chief Justice
John Roberts and Justice Samuel Alito, appointees of President
George W. Bush, has become more conservative and more skeptical
of racial preferences in education.
The Supreme Court is expected to hear arguments in the case
in its upcoming term that begins in October, with a ruling
likely early next year. It will be one of the highest profile
cases of the 2012-13 term.
The court is likely to hear arguments in the case around the
same time as the presidential, congressional and other U.S.
elections in November.
Obama, the first black U.S. president, and his top officials
have supported allowing educators to consider the race of
students in certain plans designed to promote diversity.
The high court will consider the case with eight of its nine
members, as Justice Elena Kagan did not take part in considering
the appeal. She gave no reason for her recusal, but she has
taken herself out of cases when she worked on the issue in her
prior job as solicitor general in the Obama administration.
A federal judge and a U.S. appeals court upheld the
admissions policies the University of Texas adopted in 2005. The
Supreme Court agreed to review the appeals court ruling.
RACE CONSIDERED WITH OTHER FACTORS
Texas provides admission for those in the top 10 percent of
the state high schools. Fisher did not qualify and was put into
a pool of applicants where race is considered along with other
factors such as test scores, community service, leadership
qualities and work experience.
She was competing for less than 20 percent of admission
slots that remained. Fisher and another white female student
denied admission sued, but the other applicant has already
graduated from another college and has dropped out of the case.
Fisher said in the lawsuit that her academic credentials
exceeded those of many minority students, but that she lost out
because of a coding system in which race is used as a factor in
admissions decisions to increase classroom diversity.
In a statement, Fisher said she was grateful her case would
be heard, adding, "I hope the court will decide that all future
UT (University of Texas) applicants will be allowed to compete
for admission without their race or ethnicity being a factor."
In Austin, university president William Powers said in a
statement the institution "will vigorously seek a decision"
reaffirming the educational benefits of diversity and its
narrowly tailored admissions policy.
On the university website, he said the student body was
diverse, with African American, Hispanic and Asian American
students making up more than 35 percent of the enrollment.
Opponents of using race in admissions applauded the court's
decision. "The court is right to take the case because the
justices must keep an eye on what schools are doing," said Roger
Clegg, president of the Center for Equal Opportunity.
Supporters, such as Brenda Shum, the senior counsel for the
Educational Opportunities Project at the Lawyers' Committee for
Civil Rights Under Law, expressed confidence the policy would be
upheld.
"This case provides a platform for a newly configured U.S.
Supreme Court to reconsider the constitutionality of
race-conscious admissions in higher education," she said. "We
remain confident that the court will reaffirm that colleges and
universities may pursue the educational benefits of diversity."
Vanderbilt University law professor Brian Fitzpatrick said
the court possibly could use the case to overturn its 2003
ruling. "It is also possible the court will narrowly focus on
the unique circumstances of the University of Texas," he said.
Columbia University law professor Ted Shaw, who previously
worked at the NAACP Legal Defense Fund, said the court decision
was "potentially troubling news for colleges, universities and
those who support efforts to diversity institutions of higher
education."
The Supreme Court case is Fisher v. University of Texas at
Austin, No. 11-345.
For Fisher: Bert Rein of Wiley Rein.
For University of Texas at Austin: Jonathan Mitchell,
Solicitor General of Texas.
(Reporting By James Vicini)
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