Nine years ago, the high court upheld on a 5-4 vote a University of Michigan policy that included race -- along with whether an applicant was an athlete, a musician, the child of an alumnus and other considerations -- in admissions decisions.
At the time, it appeared the victory might be short-lived because of potential retirements from the court. Since then, four justices have retired, including Sandra Day O'Connor, the author of the 2003 decision in Grutter v. Bollinger, the University of Michigan case. She was replaced by Justice Samuel Alito, who opposes racial preferences.
The Supreme Court has agreed to hear the case of Abigail Fisher, who sued the University of Texas for discrimination. Ms. Fisher claims she was denied admission even though she had a better academic record than some minority students who were admitted. The court could hear arguments just days before the Nov. 6 presidential election.
This time, Justice Anthony Kennedy could be the deciding vote. He dissented from the 2003 ruling in the University of Michigan case. Justice Elena Kagan recused herself because she took part in the Fisher case as the Obama administration's solicitor general before the president named her to the high court.
The University of Texas automatically accepts the top 10 percent of seniors from all high schools in the state, then includes race among other factors in a competition to fill the remaining openings. The 2011 freshman class at the state's flagship university was 26.3 percent black or Hispanic -- good progress, but well below the percentage of the state population that is African-American or Latino.
Ms. Fisher claims she was turned down because she is white. But she also may have lost out to a student with a special talent, a more compelling personal essay or a special circumstance such as coming from an economically disadvantaged family. Universities routinely use these and other criteria to assemble freshman classes.
Several states do not permit race-based admissions to state colleges and universities. In California, which outlawed the practice in 1998, minority enrollment declined throughout its public university system, in some schools to as low as 3 percent. In Florida, which enacted its ban in 1999, the gap has grown between the percentage of minority students who graduate from high school and the share of minority college freshmen.
In 2003, Justice O'Connor wrote that the day was coming when racial preferences would no longer be needed. But the day she envisioned has not yet dawned. And it likely will not arrive as long as inequalities in education, economic opportunity and health care continue disproportionately to affect minority Americans.
Weakening affirmative action will only make it more difficult for these Americans to overcome such obstacles.