The Supreme Court
will once again confront the issue of race in university admissions in a
case brought by a white student denied a spot at the flagship campus of
the University of Texas.
The court said Tuesday it will return to the issue of affirmative action in higher education
for the first time since its 2003 decision endorsing the use of race as
a factor in admissions. This time around, a more conservative court is
being asked to outlaw the use of Texas' affirmative action plan and
possibly to jettison the earlier ruling entirely.
A broad ruling in favor of the student,
Abigail Fisher, could threaten affirmative action programs at many of
the nation's public and private universities, said Vanderbilt University
law professor Brian Fitzpatrick.
A federal appeals court upheld the Texas
program at issue, saying it was allowed under the high court's decision
in Grutter vs. Bollinger in 2003 that upheld racial considerations in
university admissions at the University of Michigan law school.
The Texas case will be argued in the fall,
probably in the final days of the presidential election campaign, and
the changed makeup of the Supreme Court could foretell a different
outcome. For one thing, Justice Samuel Alito appears more hostile to affirmative action than his predecessor, Justice Sandra Day O'Connor. For another, Justice Elena Kagan, who might be expected to vote with the court's liberal-leaning justices in support of it, is not taking part in the case.
Kagan's absence probably is a result of the
Justice Department's participation in the Texas case in the lower courts
at a time when she served as solicitor general.
The challenge to the University of Texas
program comes from Abigail Fisher, who filed a lawsuit with another
woman when they were denied admission there. They contended the
university's race-conscious policy violated their civil and
constitutional rights. By then, the two had enrolled elsewhere.
The other woman has since dropped out of the
case and the state has said that Fisher is a senior at Louisiana State
University whose impending graduation should bring an end to the
lawsuit. But the Supreme Court appeared not to buy that argument
Tuesday.
Most entering freshmen at Texas are admitted
because they are among the top 10 percent in their high school class.
The Texas policy applies to the remaining spots and allows for the
consideration of race along with other factors.
Texas had dropped affirmative action
policies after a 1996 appeals court ruling. But following the high court
ruling in 2003, the university resumed considering race starting with
its 2005 entering class
Texas said its updated policy does not use
quotas, which the high court has previously rejected.Instead, it said it
takes a Supreme Court-endorsed holistic approach to enrollment, with an
eye toward increasing the diversity of the student body.
Before adding race back into the mix, Texas'
student body was 21 percent African-American and Hispanic, according to
court papers.
By 2007, the year before Fisher filed her
lawsuit, African-Americans and Hispanics accounted for more than a
quarter of the entering freshman class.
Fitzpatrick said two other states,
California and Florida, use similar "top 10" plans, although California
law explicitly prohibits the consideration of race.
"But the vast majority of schools that are
selective are using affirmative action, though they don't like to
advertise it for fear of being sued," he said.
Read more: http://www.foxnews.com/politics/2012/02/21/supreme-court-to-take-up-reverse-affirmative-action-case-at-texas-university/?test=latestnews#ixzz1n5J6lfAk
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