SCOTUS Will Revisit Case That Could Kill Affirmative Action

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Blake Neff Reporter
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The U.S. Supreme Court Monday agreed to revisit the case of a Texas woman who claims affirmative action prevented her from attending the University of Texas. The move means race-based affirmative action is once again in danger of being abolished at public institutions.

The case, Fisher v. Texas, concerns the troubles of Abigail Fisher, who applied to the University of Texas at Austin in 2008 and was rejected. Currently, UT-Austin automatically grants admission to the top 10 percent of every high school class, while doling out its remaining admissions based on a “holistic process” that evaluates grades, extracurriculars, and other factors (including race). Fisher claims lower-quality applicants were admitted to the school on the basis of their race, illegally violating the Fourteenth Amendment’s guarantee of equal protection under the law.

The case was first heard by the Supreme Court in 2013, and many thought the justices would gut affirmative action then. Instead, the Court issued a narrower 7-1 ruling that ordered lower courts to apply a higher degree of scrutiny in determining whether Texas’ affirmative action program was constitutional.

The ruling sent the case back to the Fifth Circuit Court of Appeals, which once again ruled against Fisher despite the heightened level of scrutiny. Now, Fisher has appealed back to the Supreme Court, and will have her case heard again.

The current governing Supreme Court precedent, the 2003 Grutter v. Bollinger case, holds that public colleges may engage in affirmative action in order to achieve the state’s interest in a diverse student body. However, such policies must be limited in scope. Many expect the Court to roll back that decision, however. The decision’s author, Sandra Day O’Connor, has been replaced by the more conservative Justice Samuel Alito, while current Court swing justice Anthony Kennedy was a dissenter to that decision, arguing that direct racial affirmative action was likely unconstitutional.

The Court’s liberal wing will have an even harder time defending affirmative action, as Justice Elena Kagan will have to recuse herself from the case due to her prior involvement with it as President Obama’s solicitor general.

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