SCOTUS Hears Affirmative Action Case

The US Supreme Court is hearing oral arguments today in affirmative action case Fisher v. University of Texas. This is the third time the Court has considered affirmative action in higher education in 35 years. In its two previous rulings the court has decided that race may be one of many factors considered in the admissions process, but racial quotas are prohibited.

The case, brought by Abagail Fisher, a Caucasian student claiming to have been denied admissions at the University of Texas at Austin on account of her race, could “eliminate diversity as a rationale sufficient to justify any use of race in admission decisions.” The US Court of Appeals for the Fifth Circuit previously ruled in favor of the University of Texas, indicating that the university had not violated the civil or constitutional rights of the plaintiffs.

Ninety-eight friend-of-the-court briefs have been filed in the Fisher v. University of Texas case- seventy-three of those briefs argue for the court to uphold affirmative action. The last time the Supreme Court heard an affirmative action case, Grutter v. Bollinger in 2003, Sandra Day O’Connor wrote the majority opinion in the 5-to-4 ruling to prohibit public colleges and universities from using a points system in admissions decisions to increase minority admissions, but ruled that the schools could account for race in other ways to promote diversity. Justice Anthony M. Kennedy, widely considered the current court’s swing voter, dissented that decision in 2003 and has never voted to uphold an affirmative action program in his career.

Justice Elena Kagan, having worked on the case during her term as solicitor general, has disqualified herself from hearing the case. Therefore, it is possible that the decision could be a 4-to-4 tie, effectively upholding the lower court’s decision in favor of the University of Texas. However, NPR reports that experts think this outcome is highly unlikely, “and that the court accepted this case for the very purpose of either reversing its past affirmative action rulings, or making such plans so restrictive that they are possible in theory, but not in practice.”

Media Resources: Feminist Daily Newswire 2/22/12; NPR 10/10/12; NY Times 10/10/12

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