America’s Constitution embraces the cultural ideal that all persons are equal, and that race should not be a dividing line in who gets to benefit from public policies or programs. But the Supreme Court has spent decades sorting out what remedies are constitutionally acceptable when opportunity does not appear to be open equally to all who seek it. If opportunity was explicitly denied because of someone’s race, the remedy, of course, is to end that discrimination. But the other side of the constitutional issue is whether and when race can be used to try to break down what are seen as barriers to equality. That is the issue the Court faces in cases about “affirmative action,” an issue that it will confront again in October.
Some of the highest-profile cases that the Court has decided on the “affirmative” use of race involve policies that control admission to colleges and universities — that is, those institutions that are operated by state or local governments. The Constitution does not apply, in general, to private colleges, except in programs paid for with public funds. The last time the Court ruled on public college admissions policies based partly on the race of the applicants was nine years ago. Illustrating how difficult this issue can be, the Court at that time allowed the University of Michigan Law School to use race as one factor in the selection of those it will admit, but it struck down a different approach that was more closely tied to race that governed admissions to the same university’s undergraduate classes.
The decision in the law school case prompted the trustees of the University of Texas at Austin, the leading public university in that state, to adopt its own version of an admissions program for undergraduates, with race as a contributing though not controlling factor. A young white woman from Sugar Land, Texas — Abigail Noel Fisher — had applied for admission as a first-year student in the fall of 2008 when that policy was in effect. As a resident of Texas, she would have been admitted automatically if she had finished her high school career in the top ten percent of her class, but she did not. That “Top Ten Percent Plan” had been passed by the state legislature in 1997, after the federal courts had struck down an earlier admissions policy that took race into account.
The “Top Ten Percent Plan” — still in effect — has filled more than eighty-five percent of the available slots in the entering freshman class, so Ms. Fisher was competing for admission with a much smaller group. and she did not make the cut. She believed that it was because of her race.