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Fisher vs University of Texas: SCOTUS Set to Strike Down Affirmative Action

On Wednesday morning, the Supreme Court will sit to hear arguments in the first big ticket case of the Fall session, Fisher v. University of Texas, a case that will re-ignite the highly flammable debate over affirmative action in higher education.

The case challenges the constitutionality of the use of race by universities as a factor in making admission decisions, arguing that race-conscious admissions criteria violate the Constitution’s Equal Protection clause. The challenge runs head-long into the Supreme Court’s long-standing precedent that, while quota systems are unconstitutional, race-conscious admissions decisions are constitutional under the right circumstances.

Fisher comes to the Court by way of Abigail Fisher, a white female from Sugar Land, Texas, who was denied admission to the University of Texas at Austin and subsequently filed a lawsuit alleging that she was admission denied on the basis of her race.

Relevant to Ms. Fisher’s allegation is the state of Texas’ “top 10%” policy, a program which automatically grants admission to the University of Texas system for any student finishing in the top 10% of their high school class, regardless of race. University spots not taken by those who qualify for top 10% placement go to applicants that have to apply through the general application process, a system that does factor the race of the applicant into the admissions decision.

Ms. Fisher fell outside of the top 10% of her graduating class and applied through the regular process. Her denial and subsequent legal challenge gave birth to the case that is set to potentially reverse course on the issue of affirmative action at the federal level and declare it unconstitutional from here on out.

Supporters of the Texas program argue that schools should still have the discretion to use race as a factor in a larger, holistic process to ensure diversity in higher education, pointing to current Supreme Court precedent as justification for the policy.

On the other side, Ms. Fisher’s supporters contend that because Texas has a significant amount of schools whose population consists of almost entirely minority students, the “top 10%” program sufficiently addresses the issue of diversity in the class room in a race-neutral way, therefore eliminating the “diversity” justification for using race-conscious admissions criteria.

In the 2003 case of Grutter v. Bollinger, the most recent case which raised the issue of affirmative action in higher education, the Justices upheld a Michigan Law School policy that used the race of the applicant as a relevant factor in the admissions decision. There, the Court ruled that, so long as race was just one among many factors and not determinative of the final admissions decision or used to fulfill racial quotas, schools could consider race if they felt it necessary to deliver a “critical mass” of diversity in the classroom.

The dissent in Grutter vehemently disagreed with the five-justice majority, arguing that the use of race as one of many factors was just an attempt to sneak an unconstitutional race balancing mechanism in under the guise of educational interests. Justice Thomas, the Court’s only minority Justice at the time, joined the dissent in the case, arguing that the majority blessed “a practice that can only weaken the principle of equality embodied in the Declaration of Independence and the Equal Protection clause.”

Despite their loss in Grutter, the dissenter’s argument has gained new life in Fisher.

The case will be argued before a much different Court than the one that split on Grutter less than a decade ago. Justice Sandra Day O’Connor, the author of the Grutter majority, has since retired and been replaced by Justice Samuel Alito, a conservative appointed by George W. Bush. Justice Stevens, a liberal justice that joined the majority in Grutter was replaced by Justice Elena Kagan, who will be recused from the case due to her work in the Department of Justice. Moreover, perennial swing Justice Anthony Kennedy has sided with the conservatives in recent race-related cases, voting to strike-down race-conscious school policies in Seattle and Louisville.

The Roberts Court, a Court considered by many legal scholars to be one of the most conservative Courts since the New Deal, will hear Fisher in a setting that gives the conservative side of the bench a controlling number of votes in determining the future of affirmative action in higher education.

In a 2007 opinion striking down a race-conscious school integration policy, Chief Justice Roberts noted that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Today’s arguments will give us a pretty good idea of whether the Supreme Court will extend that sentiment to the realm of higher education.

LIVE Halftime Report From SCOTUSBlog: "In sum, the argument was not terribly revealing of how the Court will rule. The liberals were plainly supportive of the Texas plan and concerned about the possibility of overruling Grutter. The conservatives were largely silent. That will almost certainly change as counsel for the University and Solicitor General Verrilli stand up to defend that plan."

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