Texas case revisited: Supreme Court Affirmative Action

Published: June 30, 2015

Texas case revisited: Supreme Court Affirmative Action, The Supreme Court has again agreed to wade into the issue of affirmative action in higher education, announcing on Monday that it will consider a challenge to the University of Texas’ efforts to create racial diversity on campus.

The case was brought by Abigail Fisher, who argues that her 2008 rejection by UT’s flagship institution occurred because of the university system’s affirmative action policy.

The high court had already taken up the same case two years ago, ruling 7-1 that lower courts had not been demanding enough in reviewing the Texas program. This spring, Fisher’s challenge spent several weeks on the list of cases that the justices were considering whether to hear. Monday’s announcement means that the court’s conservative justices will get another chance to rein in or eliminate race-based preferences at colleges and universities.

“I am very grateful that the Supreme Court will once again hear my case,” Fisher said in a statement. “I hope the justices will rule that UT is not allowed to treat undergraduate applicants differently because of their race or ethnicity.”

But UT Austin President Gregory L. Fenves argued that his university is already following existing Supreme Court precedent. “Our admissions policy is narrowly-tailored, constitutional and has been upheld by the courts multiple times,” he said.

Justice Elena Kagan recused herself from the decision to take up Fisher’s case again. Her absence raises the prospect that the justices could wind up splitting evenly, which would result in no binding precedent for other cases.

UT automatically admits all applicants who graduate in the top 10 percent of their class. After that, administrators employ what the appeals court — in a 2-1 ruling in July — deemed a “holistic” admissions process. The courts allow colleges to use race to achieve diversity and promote equal opportunities, but only when alternatives would require an even greater use of race, the judges said.

The U.S. Supreme Court first acted on the case in June 2013, sending it down to the U.S. Court of Appeals for the Fifth Circuit, which ruled in favor of the university.

The appellate court denied Fisher’s petition for a rehearing in November. She appealed to the Supreme Court in February.

The court is finished with arguments for this term, so the case won’t be heard until the fall.

However, another ruling last year made it easier for states themselves to bar public colleges from considering race in admissions. The Supreme Court said in April 2014 that one such ban — in Michigan — could stand.

In that case, the court upheld a constitutional amendment that Michigan voters approved in 2006, banning preferential treatment based on race, gender, ethnicity or national origin.

Eight states now ban race-based affirmative action at public universities.


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