The current situation, that allows a college to give preferential treatment to race as a factor for building campus diversity, was the result of a narrow margin (5-4) decision in Grutter v. Bollinger (2003) that settled in favor of public colleges and universities being able to take race into account in vague ways but not use it in a transparent point system. While using race in a point system for the purpose of admissions would definitely have been a mistake, at least, aspirants would have known the scores in a transparent fashion. The accommodation reached in the 2003 judgment moved racial preference to a clouded territory.
Chief Justice John G. Roberts Jr. had written in a 2007 decision that “Racial balancing is not transformed from ‘patently unconstitutional' to a compelling state interest simply by relabeling it ‘racial diversity.” His comments made clear that the judiciary was uncomfortable with the Grutter v. Bollinger ruling and its effects.
The issue came to light on a lawsuit filed by one Ms. Fisher who had applied in 2008 for admission in the University of Texas, but failing to make the top 10% on merit list, was included in a group of potential candidates for whom selection procedure included race as a significant factor without transparency or quantification.
While Texas government representatives claimed that such happenings were the result of a trade-off to ensure that individual classrooms contained a “critical mass” of minority students, and while the lower federal courts supported the stance of the state, a United States Court of Appeals for the Fifth Circuit judge dissented from the full court's decision with significant misgivings.
The dissenting Judge Edith Jones asked, “Will classroom diversity ‘suffer' in areas like applied math kinesiology, chemistry, Farsi or hundreds of other subjects if, by chance, few or no students of a certain race are enrolled?”
Subsequently, on Tuesday, the Supreme Court has decided to hear the white student's claims that the University of Texas's admissions policy cost her admission because of race-conscious screening.
