The U.S. Supreme Court announced on Tuesday that it would 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 , brought by Abigail Fisher, who claims she was denied admission in 2008 because she is white. She asserts that the complex admissions policy of the university — a blend of admitting the top 10 percent of the state’s high school graduates along with the use of race as a factor — 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 .
