Though the idea of affirmative action to achieve racial diversity on campus may seem quaint in the middle of a 21st century presidential campaign, it matters a lot to the students involved, black, Hispanic or white, trying to get the best education possible.
It also matters to the courts, which have wrestled with the concept for decades. Is diversity so compelling an interest that public colleges and universities can treat applicants differently because of the color of their skin?
The arithmetic of the modern court, conservatives versus liberals, doesn't bode well for the survival of affirmative action in college admissions, even though the Obama administration filed a brief this summer strongly supporting the University of Texas policy.
In 1978's Regents of the University of California vs. Bakke, a Supreme Court majority found the admissions policy of the UC Davis Medical School unconstitutional when it set aside spaces for minorities, but a plurality recognized that diversity was a legitimate goal.
In 2003, the high court went both ways, striking down the University of Michigan's undergraduate admissions policy but upholding the admissions policy of the Law School, though both used race as a determining factor.
In Gratz vs. Bollinger, the justices ruled 6-3 the university's undergraduate admissions guidelines were unconstitutional. The guidelines used a number of factors to evaluate an undergraduate applicant, assigning a numerical value to each factor.
Those scoring above 100 were considered eligible to fill the limited number of slots. However, minorities automatically received a 20-point bonus.
Two white students, who normally would have been admitted but weren't, challenged the policy in court.
The prevailing opinion written by Chief Justice William Rehnquist said, "Because the university's use of race in its current freshman admissions policy is not narrowly tailored to achieve [the school's] asserted interest in diversity, the policy violates the equal protection clause" of the 14th Amendment.
The other University of Michigan case, Grutter vs. Bollinger, was handed down the same day with Justice Sandra Day O'Connor joining four liberals to form the five-member majority for a different result.
In Grutter, the university's Law School chose applicants based on a number of factors, including race, but gave no numerical weight to race. Instead, the Law School tried to achieve a "critical mass" of students, black and Native American, who might otherwise not be included.
Again, the policy had been challenged by a white student who was qualified to be admitted to the Law School but wasn't.
O'Connor said in her majority opinion, "The law school's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body is not prohibited by the equal protection clause" of the Constitution.
She said the law school's policy survived even strict scrutiny, the toughest of three levels of scrutiny used by the courts (the lower levels are "reasonable review" and "intermediate review").
But, she warned racial preferences should not last forever.
"It has been 25 years since Justice [Lewis] Powell first approved the use of race to further an interest in student body diversity in the context of public higher education" in 1978's Regents of the University of California vs. Bakke, O'Connor said. "Since that time, the number of minority applicants with high grades and test scores has indeed increased. ... We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today."
"Preferment by race, when resorted to by the state, can be the most divisive of all policies," Kennedy wrote in 2003, "containing within it the potential to destroy confidence in the Constitution and in the idea of equality."
Kennedy is still a powerful conservative swing vote on the high court, frequently joining the four-member conservative bloc.
The new Texas case challenging affirmative action, set for Wednesday, is the direct progeny of Grutter.
More than three-fourths of freshmen enroll at the University of Texas under a state law that gives automatic admission to students in the top 10 percent of their high school classes. For the rest, the school considers a number of factors, including race.
Two white students denied UT admission under the policy challenged it in federal court.
A three-judge appellate panel upheld the admissions policy, and the full 5th U.S. Circuit Court of Appeals, one of the most conservative in the country, refused to rehear the case by a vote of 9-7.
The majority said UT's admissions program was "narrowly tailored," as required by the 2003 Supreme Court precedent in Grutter.
The case was brought by Abigail Fisher, one of the two white students, who applied to the school in 2008. Fisher was not entitled to admission under the top 10 percent law, but her academic credentials exceeded many of those of non-top 10 percent students who were accepted.
Even the appeals court opinion in the UT case, like O'Connor, warned that affirmative action cannot last forever.
"A university may decide to pursue the goal of a diverse student body, and it may do so to the extent it ties that goal to the educational benefits that flow from diversity," the opinion said. "The admissions procedures that UT adopted, modeled after the plan approved by the Supreme Court in Grutter, are narrowly tailored -- procedures in some respects superior to the Grutter plan because the university does not keep a running tally of under-represented minority representation during the admissions process. We are satisfied that the university's decision to reintroduce race-conscious admissions was adequately supported by the 'serious, good faith consideration' required by Grutter. Finally, it is neither our role nor purpose to dance from Grutter's firm holding that diversity is an interest supporting compelling necessity. Nor are we inclined to do so."
Whether affirmative action survives the Texas case may be problematic. Liberal Justice Elena Kagan has withdrawn from the case, reducing the modern liberal bloc from four to three. Though justices do not give a reason for withdrawals, Kagan was U.S. solicitor general in the early days of the case.
The Obama administration entered the fray this summer with a solicitor general's brief supporting the UT policy. The brief defines the issue as whether "the University of Texas at Austin's use of race as one of several diversity considerations in a holistic analysis of individual applicants violates the equal protection clause of the 14th Amendment" to the Constitution.
After that "say what?" introduction, the brief gets down to brass tacks, stressing the importance of diversity at U.S. military academies.
"The educational benefits of diversity identified in Grutter are of critical importance to the United States," the brief says. "Careers in a range of fields that that are vital to the national interest -- such as the military officer corps, science, law, medicine, finance, education and other professions [for which a university degree is a prerequisite] -- must be open to all segments of American society, regardless of race and ethnicity. That is not simply a matter of civic responsibility; it is a pressing necessity in an era of intense competition in the global economy and ever evolving worldwide national security threats. The government ... has a vital interest in drawing its personnel ... from a well-qualified and diverse pool of university and service academy graduates of all backgrounds who possess the understanding of diversity that is necessary to govern and defend the United States."
The brief says the U.S. Defense Department in particular has an interest in "a highly qualified and broadly diverse officer corps" and a "racially and ethnically diverse range of [academy] graduates who are prepared to lead a multiracial force."
Despite the considerable weight of the administration, the case might not be confined to the survival of affirmative action in college or military academy admissions. The question instead may be, how deeply will Kennedy and the four other conservatives strike at a broad range of affirmative actions by government? In fact, the outlook for affirmative action, what conservatives call "racial preferences," in today's Supreme Court is so dismal, "civil rights groups get nervous when such cases arise before the reconstituted Roberts Court," The Washington Post reported in July 2011.
Little noticed by the public, statutory affirmative action has been chugging along across the breadth of the U.S. government for some time.
The Congressional Research Service, in a report in April 2011 to Congress, detailed the programs in each arena of public service.
The "Survey of Federal Laws Containing Goals, Set-Asides, Priorities or Other Preferences Based on Race, Gender or Ethnicity" was a "broad, but by no means exhaustive, survey of federal statutes that specifically refer to race, gender or ethnicity as factors to be considered in the administration of any federal program," the survey said. "Such measures may include, but are not limited to, goals, timetables, set-asides, quotas, priorities, and preferences, as those terms are generally [however imperfectly] understood. ... [laws] that appear, in any manner, to prefer or consider race, gender or ethnicity as affirmative factors in federal employment, in the award of federal contracts, or in granting any federal benefit to individuals, groups or institutions. Several laws directed to 'socially and economically disadvantaged' individuals, groups, and institutions are included because ... that term has been defined administratively and by statute to presumptively apply to specific racial or ethnic minorities or women."
The report covers all aspects of government, category by category. Under "Small Business," for example, the report notes a federal statute that "establishes the Minority Small Business and Capital Development Program, commonly known as the 8(a) Program and described among the government-wide programs, which is intended to (1) promote the business development of small business concerns owned and controlled by socially and economically disadvantaged individuals so that such concerns can compete on an equal basis in the American economy; (2) promote the competitive viability of such concerns in the marketplace by providing such available contract, financial, technical, and management assistance as may be necessary; and (3) increase procurement of articles, supplies, services, materials, and construction work from small business concerns owned by socially and economically disadvantaged individuals."
If that dense bit of bureaucratic vernacular doesn't impress you, the survey is filled with other examples, including a statute that "establishes the [Small Business Administration's] 'microloan program,' under which it can make direct loans to 'eligible intermediaries' to enable such intermediaries to make 'small-scale loans, particularly loans in amounts averaging not more than $10,000,' to start-up, newly established or growing small business concerns owned by women and minorities, among others, for working capital or the acquisition of materials, supplies, or equipment."
Whether this affirmative action apparatus in U.S. government, no matter how effective, can survive in the face of a conservative-dominated, hostile Supreme Court may only be a question of time.