On Feb. 21, the U.S. Supreme Court announced that it will revisit the divisive and vexing issue of affirmative action in higher education. But it will do so without Justice Elena Kagan, who recused herself, and, perhaps more importantly, without Justice Sandra Day O’Connor, who retired in 2006 after rescuing affirmative action from conservative attack three years earlier.
The vehicle for the re-examination is Fisher v. University of Texas at Austin . Abigail Fisher claims she was denied admission to UT in 2008 and that racial considerations by UT admissions officials disadvantaged her. She asserts that the complex admissions policy of the university — which takes into account the race of applicants who are not automatically admitted because they were in the top 10 percent of their public high school class — violates the equal protection guarantee of the 14th Amendment. The “10 percent” plan began in 1998, and race was added as a “special circumstance” factor in 2004, after the high court, led by O’Connor, ruled in favor of affirmative action in Grutter v. Bollinger .
