Supreme Court Takes Up Affirmative Action Case

Kagan Recuses Herself From Hot-Button Decision

By Reuters

Published October 09, 2012.
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The U.S. Supreme Court on Wednesday is set to hear arguments on whether colleges and universities can continue to favor minority candidates in admissions policies. Given that the court in 2003 approved such policies, its decision to take up the issue again suggests it may be looking to cut back on affirmative action.

The case before the court was brought by Abigail Fisher, a white woman who says the University of Texas denied her admission because of her race, in violation of the U.S. Constitution’s equal protection guarantee. The university says it must consider race as a factor in admissions, or minorities will be underrepresented on its campuses.

Several factors are tipping the scales against affirmative action this time around: For starters, the makeup of the court has become more conservative in the past nine years. Seven states have banned affirmative action, while polls show the U.S. public has grown increasingly opposed to racial preferences.

The court often takes up cases to resolve conflicts between two or more federal appeals courts - but no such conflict exists here, which could mean the court is looking to reexamine its own precedent. In agreeing to hear the case, the justices brushed off an argument by the University of Texas that the court need not take up the matter, since Fisher has already graduated from another school.

One likely supporter of affirmative action, Justice Elena Kagan, has recused herself. She gave no reason, but it is likely she decided to step aside because she worked on the case in her previous job as U.S. Solicitor General.

That leaves eight justices to hear the case. Four conservatives, Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito, are expected to reject the University of Texas program. The fifth conservative, Anthony Kennedy, is often thought of as a swing vote. He has voted with the conservative wing on this issue in the past but has also acknowledged a need for racial diversity on campuses. A 4-4 tie would affirm the lower court, which rejected Fisher’s challenge.

A broad ruling by the court could wipe out affirmative action programs in the 43 state school systems that still allow racial preferences, as well as those at thousands of private colleges and universities. The court could also rule narrowly and disallow only the Texas program, or it could approve the Texas approach.

HOW TEXAS DOES IT

The University of Texas fills most of its entering class of freshmen using a policy that grants automatic admission to in-state s t udents in the top 10 percent of their high school class. For the remaining slots, it considers an applicant’s race as one of many factors to improve diversity.

That approach stems from the university’s fraught experience with affirmative action and its efforts to maintain diversity on campus. I n 1996 a federal appeals court barred state universities in Texas, Louisiana and Mississippi from considering race as a factor when admitting students. That ruling, Hopwood v. Texas, caused minority enrollment at the University of Texas to plunge, with the number of black students falling by 40 percent, according to the university.


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