Supreme Court to Take Up Controversial Affirmative Action Case

iStockphoto/Thinkstock(WASHINGTON) -- The Supreme Court has announced it will take up another hot button social issue on its docket: affirmative action.

On Tuesday, the Court agreed to hear a case brought by Abigail Fisher, a white student who says she was denied admission to the University of Texas based only on the color of her skin.

The case has been closely monitored because supporters of affirmative action fear the Court might now be willing to curtail or further restrict "race conscious admissions programs" at public universities.

Critics claim such policies stress skin pigment over school performance when student applications are considered.

The Court will most likely hear the case next fall -- around the time of the election -- as it has already filled its final April argument calendar.  Justice Elena Kagan will not participate in the case because she dealt with the issue in her previous job as Solicitor General.

"This case presents the Court with an opportunity to clarify the boundaries of race preferences in higher education, or even reconsider whether race should be permitted at all under the Constitution’s  guarantee of equal protection," says Edward Blum, the Director of the Project on Fair Representation , a non-profit legal defense foundation that has provided legal counsel for Fisher.

In 1997, the Texas legislature passed the "Top Ten Percent Law" which mandates that Texas high school seniors in the top 10 percent of their class be automatically admitted to any Texas state university.  In addition to that program, the school considers race along with several other factors for admission.

Fisher did not qualify for automatic admission.  Instead, she competed with other non-top 10 state applicants, some of whom were entitled to racial preferences. She was denied admission and argues it was because of her race. 

In court papers, her lawyers argue, "Whether a public university can layer racial preferences over a non-racial admissions plan that ensures very substantial levels of minority enrollment is a question which itself warrants review by this Court."

It was only in 2003 that the Supreme Court took up a similar affirmative action case and narrowly upheld the limited use of race as a factor in law school admissions.  Justice Sandra Day O’Connor wrote the 5-4 decision -- Grutter v. Bollinger -- and held that the government has a compelling interest in diversity in public universities.

But a lot has changed since then.  Most importantly in this instance, Justice Samuel Alito replaced Justice O’Connor on the bench.

"The addition of Justice Alito to this Court adds an element to the case that would not likely have been there with Justice O’Connor.  The difference is that Justice Alito has shown himself in other cases to be more skeptical of racial classifications and preferences than did Justice O’Connor," says Blum.

Copyright 2012 ABC News Radio

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