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Many Fear Supreme Court On Verge of Striking Down Affirmative Action

The U.S. Supreme Court is set to once again consider the contentious issue of affirmative action in college admissions by reviewing the program in place at the University of Texas, which affirmative action proponents fear will be ruled discriminatory by the court—effectively shutting down affirmative action at public universities across the country.

The issue of affirmative action has become a third rail of national politics in America, eliciting such heightened emotions on both sides that most people decline to speak about it in mixed company.

The court has considered affirmative action cases twice in the past 35 years, in both cases deciding that race may be a factor in determining college admissions as long as there aren’t any racial quotas used. But this time the court seems poised to strike down all uses of affirmative action.

The case at hand involves an honor roll student who played the cello and was rejected from the University of Texas, ultimately enrolling at Louisiana State University. She said she “dreamt of going to the University of Texas ever since the second grade” but didn’t get in, she contends because she’s white. She says people in her high school class with lower grades and similar activities were admitted, and “the only difference between us was the color of our skin.”

After previous challenges to Texas’ affirmative action program resulted in minority enrollment plummeting 40 percent, the university—under the administration of then-Governor George W. Bush—adopted a policy guaranteeing admission to all students in the top 10 percent of their high school class. While that policy raised minority admissions somewhat, the levels were still below what they were before the affirmative action policy was ruled invalid by the courts. So in 2003 Texas added race as one of the factors that could be considered for applicants not automatically admitted through the top 10 percent plan. When Fisher applied in 2008, 20 percent of the incoming class was admitted under the plan that allowed race to be considered.

While University President Bill Powers argues that in academia and also the business world nobody would hire people based only on their class rank in college or high school, the school also contends that Fisher still wouldn’t have made the cut even without the race factor.

“Even if Abigail Fisher had received a perfect Personal Achievement Index score she would not have been admitted … because her Academic Index was simply not high enough,” says Gregory Garre, lawyer for the University. Garre, who served as U.S. solicitor general in the George W. Bush administration, says flatly that “Fisher would not have been admitted, no matter what her race.”

Fisher’s lawyers contend that any consideration of race is gratuitous and that the university was already achieving a diverse student body without the race policy.

Because the case is so worrisome to supporters of affirmative action, 98 briefs have been submitted in the case—73 urging the court to uphold the Texas plan, including one from the U.S. Department of Defense concerned about the importance of diversity in its officer corps. Quite a few Fortune 100 companies also came together to file a brief on how important it is for employees to come from a diverse campus where they are exposed to the kind of world they will face in the global economy.

On the other side, UCLA law professor Richard Sander and journalist Stuart Taylor argue in their friend-of-the-court brief that minorities accepted through affirmative action often underperform once they are admitted, which they call “mismatch,” leading to lower grades and graduation rates for minorities admitted to elite institutions.

But Fisher says, simple, “I was taught from the time I was a little girl that any kind of discrimination was wrong.”

Court observers believe that her point of view may well win the day. Since the 5-4 decision in 2003, written by Justice Sandra Day O’Connor, O’Connor has been replaced on the court by staunch conservative Samuel Alito. Since Justice Elena Kagan has been recused, presumably because she worked on this case when she was in the Obama administration, the best that affirmative action supporters can hope for is a 4-4 tie, which would preserve the status quo.

But most experts don’t expect it to go down that way. They think affirmative action will be stopped dead in its tracks by this conservative Roberts court.


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