Supreme Court is ready to end affirmative action

Affirmative action received its death notice by the U.S. Supreme Court recently, several years after former Justice Sandra Day O’Connor loftily declared it would last another quarter century.

The court accepted Fisher v. Texas, a 2008 case where Abigail Fisher filed a lawsuit against the University of Texas charging she was denied entry to the school due to her race. (Read) Fisher”s complaint — her grades were better than some minority students who were accepted. The university cites the 2003 high court decision, Grutter v. Bollinger, authored by O’Connor, that allows for narrow, tailored affirmative action-based admissions “to further a compelling interest,” namely racial diversity.

However, Fisher’s lawyers argue that Texas already has the Top 10 program, which guarantees admission to all students in the top 10 of their high schools. After the 2003 decision, Texas tweaked its Top 10 program to include admission slots to some minorities who failed to qualify via the Top 10 program. That’s not fair, argue Fisher’s lawyers, because the Top 10 program, based on merit, has increased diversity at the University of Texas.

That’s an argument that I believe five members of the high court, Roberts, Thomas, Scalia, Alito and Kennedy, will support. Of the remaining four justices, Elena Kagan has to recuse herself because, while U.S. Solicitor General during the Obama administration, argued in favor of Texas in earlier arguments. Arguments will be heard this fall. Sometime in the first half of 2013, the Supreme Court will hold, 5-3, with Fisher, reverse Grutter v. Bollinger (and by association previous cases), and affirmative action will, for all intents and purposes, end its history of judicial support.

And that’s the right call. Group-based preferences are wrong. They foster resentment and distrust. As the Constitution advocates, we should be judged equally, and viewed without prejudice. The Top 10 program, which achieves diversity through merit, is a much better solution than bean-counting by colleges.