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Affirmative Action: The Supreme Court’s Next Big Decision?

Categories: Drew Whitcup, ZiR

images (5)In the wake of some monumental Supreme Court rulings, Jamelle Bouie of Slate.com is looking to the future, and discussing one particular case that looms large on the Court’s docket. The case, Fisher v. University of Texas, is making its second trip to the highest court, after a series of events that began in 2008 when Abigail Fisher, a white woman, applied to the University of Texas at Austin and was rejected. Fisher blamed the school’s affirmative action policy for her rejection. Bouie provides the procedural background:

Fisher and her lawyers couldn’t prove discrimination in court. In 2009, a federal district court upheld the university’s policy and rejected her lawsuit. She appealed the decision to the 5th U.S. Circuit Court of Appeals, which upheld the prior ruling. In a last grasp for success, her lawyers appealed their case to the Supreme Court, which—in a 7–1 decision—vacated the previous ruling and sent it back to the 5th Circuit for a second hearing. Writing for the majority, Justice Anthony Kennedy explained that the university hadn’t proved ‘its admissions program [was] narrowly tailored to obtain the educational benefits of diversity.’ Everyone had to try again.

That was 2013. The 5th Circuit returned to the question, and last year it came to the same place: UT’s policy was constitutionally kosher. ‘It is equally settled that universities may use race as part of a holistic admissions program where it cannot otherwise achieve diversity,’ wrote the 2–1 majority. Undeterred, Fisher appealed to the Supreme Court again. And on Monday, the Supreme Court took her case, again.

For fans of increased diversity in public universities, this may be a bad sign. There are at least four members of the court who would prefer to see affirmative action discarded:

Fortunately for Fisher, this latest trip to the high court might be the try that sticks. At least four Supreme Court justices believe affirmative action is unconstitutional. In his concurrence to the first Fisher opinion, for instance, Justice Antonin Scalia wrote, ‘The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception.’ Likewise, on the same grounds, Justice Clarence Thomas attacked affirmative action as morally equivalent to Jim Crow. Justice Samuel Alito has sided with affirmative action opponents in the past, and in reference to a voluntary school desegregation plan—which he struck down—Chief Justice John Roberts has said that ‘the way to stop discriminating on the basis of race is to stop discriminating on the basis of race,’ as if race consciousness is the same as racism. Meanwhile, a member of the court’s liberal wing, Justice Elena Kagan, will recuse herself from hearing the case because she worked on it when she was solicitor general.

Thanks to this summer’s blockbuster Supreme Court decisions, the Affordable Care Act is alive and well, if still imperfect. Gay marriage is the law of the land. A year from now, the same (or perhaps a slightly different) group of Justices will determine the fate of affirmative action in public schools. Stay tuned.

—Drew Whitcup, Zeteo Contributing Writer

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