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Supreme Court May Strike Down Affirmative Action

If the conservative Roberts Court is true to form, the affirmative action programs that have been used by the nation’s top universities for a generation could be in danger when the U.S. Supreme Court returns in the fall.

The Obama administration is fighting to keep affirmative action alive, joined by a diverse and wide-ranging coterie of supporters, from a group of 50 major corporations that includes Microsoft and Wal-Mart to a coalition of retired military leaders that include former Secretary of State Colin Powell.

At issue is the affirmative action program at the University of Texas, which is being challenged by a white woman, Abigail Noel Fisher, who says she was the victim of racial discrimination, in violation of the 14th Amendment’s equal protection clause, when she was rejected by the University of Texas. The court arguments are scheduled for Oct. 10, while a decision isn’t expected until the first half of 2013.

The administration is using a somewhat novel defense of affirmative action, making it a matter of national security. In a 35-page brief, the administration said the military, Federal Bureau of Investigation and Department of Homeland Security all rely on universities to produce a steady stream of diverse graduates.

“The United States has a critical interest in ensuring that educational institutions are able to provide the educational benefits of diversity,” U.S. Solicitor General Donald Verrilli argued in a brief signed by officials in six federal departments, including the Pentagon.

Considering race in admissions decisions was endorsed by the U.S. Supreme Court in the 1978 Bakke decision and reaffirmed by the court in the 2003 Grutter V. Bollinger decision. But considering that five of the nine justices appear ready to strike down race-based decision-making, many observers feel affirmative action may be in jeopardy.

The companies who filed briefs in support of the University of Texas said they “must be able to hire highly trained employees of all races, religions, cultures and economic backgrounds.”


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