The Supreme Court announced today 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 Fourteenth 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.

The Court’s action is a coup for Fisher’s veteran lawyer Bert Rein, co-founder of the D.C. firm Wiley Rein and an attorney for 48 years. It will mark Rein’s first argument before the high court. “I’ve written a million briefs to them before, but lightning has not struck” until today, Rein laughed. Rein argued the Fisher case at the district court and appeals court level because of the firm’s longstanding relationship with the D.C.-based Project on Fair Representation, which supports challenges to racial preferences.

With the current term’s argument calendar filled, the politically charged case will be argued in the fall, just before the presidential election. The Court’s consideration of the case was scheduled and postponed for three separate conferences since it was filed last Oct. 19.

The delay led to speculation that the Court was getting ready to deny review because of the case’s procedural flaws, the biggest of which was possible mootness. Fisher is about to graduate from Louisiana State University and has no intention to reapply to UT if she wins. The only concrete relief she seeks is the return of $100 in application fees and housing deposit she sent in with her application.

The University of Texas, in vigorously opposing high court review, said it could refund the $100 and “moot these proceedings without any doubt.” That is still an option for the university, and the “vehicle” issues are still present in the case, even though the Court has granted review.

Rein said the case is not moot because other damages could be claimed if the case goes forward – including the tuition differential at LSU and possible lost wages because Fisher did not get into UT. Rein declined to “read tea leaves” and predict the outcome of the case before the high court.

UT President Bill Powers, in reacting to the Court’s action, defended the university’s admissions policy as necessary and in keeping with the Grutter ruling. “The State of Texas’ Top 10 percent rule drives most of the university’s admissions. However, it is vital for the university to weigh a multitude of factors when making admissions decisions about the balance of students who will make up each entering class. We must have the flexibility to consider each applicant’s unique experiences and background so we can provide the best environment in which to educate and train the students who will be our nation’s future leaders.”

Kagan’s recusal from the case was expected. The Justice Department filed a brief in the case when it was before the U.S. Court of Appeals for the 5th Circuit in May 2010, while Kagan was solicitor general. Kagan’s name was not on the brief, but it is the traditional policy of the department that the SG’s office give its approval before the government files amicus briefs at the appeals level. The brief supported the university’s admissions policy as serving the “compelling interest” in diversity. A divided 5th Circuit upheld the policy.

Rein stressed that he is not directly calling on the Court to overturn Grutter, but rather to rule that the Texas plan uses race as a pervasive factor in ways that Grutter does not allow. Nonetheless, the case is likely to be framed as a life-or-death struggle over the future of affirmative action in state institutions of higher education and beyond. The issue has divided the Court since at least 1978, when it voted 4-1-4 in the Bakke case to allow the use of race, but not quotas, in admissions. The University of Texas has been involved in Supreme Court disputes over race in admissions since 1950, when the Court said in Sweatt v. Painter that the university’s law school had to admit black applicants.

The Court has changed considerably since the Grutter decision, in which O’Connor forecast that affirmative action programs might be needed for 25 more years to achieve the goal of diversity in higher education. O’Connor was replaced by Justice Samuel Alito Jr. who has joined Chief Justice John Roberts Jr. in disapproving the use of race as a factor in public school assignments. Three dissenters in Grutter – Anthony Kennedy, Clarence Thomas and Antonin Scalia – are still on the Court and could help form a new majority that would put en end to affirmative action well ahead of O’Connor’s deadline.

Roger Clegg, president of the Center for Equal Opportunity and a longtime critic of affirmative action, applauded the Court’s decision to take up the Fisher case. He said, “As our nation becomes more and more multiracial and multiethnic, it becomes more and more untenable for our public institutions to label, sort, and discriminate on the basis of skin color and national origin.”

John Payton, president of the NAACP Legal Defense and Educational Fund, issued this statement about the Court’s decision: “The benefits of diversity are unquestionable, and as the Fifth Circuit recognized, UT Austin’s policy falls squarely within the four corners of the Supreme Court’s landmark 2003 decision in Grutter v. Bollinger. We trust that the Court will reaffirm that the educational benefits of diversity are a compelling interest that colleges and universities can and should pursue for the good of our students, our communities, and our nation.”

Tony Mauro can be contacted at