WASHINGTON — The Supreme Court on Tuesday agreed to hear a major case on affirmative action in higher education, adding another potential blockbuster to a docket already studded with them.
The court’s decision in the new case holds the potential to undo an accommodation reached in the Supreme Court’s 5-to-4 decision in 2003 in Grutter v. Bollinger: that public colleges and universities could not use a point system to boost minority enrollment but could take race into account in vaguer ways to ensure academic diversity.
Justice Sandra Day O’Connor, who wrote the majority opinion in Grutter, said the accommodation was meant to last 25 years.
The court’s membership has changed since 2003, most notably for these purposes with the appointment of Justice Samuel A. Alito Jr., who replaced Justice O’Connor in 2006. Justice Alito has voted with the court’s more conservative justices in decisions hostile to the use of racial classifications by the government.
“There thus seem five votes — Roberts, Scalia, Kennedy, Thomas and Alito — to overrule Grutter and hold that affirmative action programs are unconstitutional,” Erwin Chemerinsky, dean of the law school at the University of California, Irvine, wrote in a recent book, “The Conservative Assault on the Constitution.”
Chief Justice John G. Roberts Jr. has been particularly skeptical of government programs that take account of race. “Racial balancing is not transformed from ‘patently unconstitutional’ to a compelling state interest simply by relabeling it ‘racial diversity,’ ” he wrote, for instance, in a 2007 decision limiting the use of race to achieve integration in public schools.
Justices Alito, Antonin Scalia and Clarence Thomas agreed. Justice Anthony M. Kennedy, the court’s swing justice, was less categorical. But he has never voted to uphold an affirmative action program.
The new case, Fisher v. Texas, No. 11-345, was brought by Abigail Fisher, a white student who said she was denied admission to the University of Texas because of her race. The case has idiosyncrasies that may limit its reach, but it also has the potential to eliminate diversity as a rationale sufficient to justify any use of race in admissions decisions.
Students in the top 10 percent of Texas high schools are automatically admitted to the public university system. Ms. Fisher just missed that cutoff at her high school in Sugar Land, Tex. She sued in 2008, challenging the way the state allocated the remaining spots using a complicated system in which race plays an unquantified but significant role.
Ms. Fisher is soon to graduate from Louisiana State University. Lawyers for the University of Texas said that meant she had no standing to sue, an issue that the justices must now consider.
Ms. Fisher’s argument on the merits is that Texas cannot have it both ways. Having implemented a race-neutral program to bolster minority admissions, she says, Texas may not supplement it with a race-conscious one.
Texas officials said the additional effort was needed to make sure that individual classrooms contained a “critical mass” of minority students.
Justice Elena Kagan disqualified herself from hearing the case, presumably because she had worked on it as solicitor general. Arguments in the case will be heard during the court’s next term, which starts in October.