October 1, 2012

AFFIRMATIVE ACTION, REDUX:  Next Wednesday (Oct. 10), the Supreme Court will hear oral arguments in another affirmative action case, Fisher v. University of Texas.  The case comes just a few years after the Supreme Court decided a pair of landmark affirmative action cases involving the University of Michigan.  In the main Michigan case, Grutter v. Bollinger, a deeply divided (5-4) Court upheld the use of race as “one factor” in a “holistic” admissions program with the end goal of creating a “critical mass” of certain minority students in the name of racial “diversity.”

The University of Texas policy being challenged does two things:  (1) It automatically admits, in a race-blind manner, the top 10% of every high school’s graduating class; and (2) for the remaining seats, the University uses the “holistic” approach, in which race is one factor.  The challenger of the law, a white female, asserts that using option 1 (race-neutral “top 10%”) negates the need for using option 2 (race consciousness).  Because, in other words, option1 yields a sufficiently “diverse” student body, why continue to use race at all?

The question before the Court is pretty straightforward:  Once a race-neutral policy is in place that creates a diverse student body, is it consistent with the Equal Protection Clause of the 14th Amendment to then use race in the name of “diversity”?

Justice Kagan has recused herself from the Fisher case, leaving only 8 Justices to decide.


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