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Affirmative Action Returns to the Supreme Court

By Stephanie Rabiner, Esq. on February 21, 2012 12:02 PM

Affirmative action in higher education will yet again return to the Supreme Court. The Court has agreed to hear an appeal from the 5th Circuit in Fisher v. University of Texas, a lawsuit challenging the public university’s use of race in admissions.

The appeal is the first time the Court will consider affirmative action since its 2003 ruling in Grutter v. Bollinger. In that 5-4 decision, the justices ruled that public universities can use race as a “plus factor” when determining which students to admit.

Fisher is unique in that Texas' public university system had already implemented a race-neutral policy that successfully created on-campus diversity. Since 1997, the system has admitted the top 10% of graduates from the state's high schools, explains the Los Angeles Times. By 2004, 21% of freshmen at the Austin campus belonged to a racial minority.

But when Grutter was released, the University of Texas decided it could do more. Admissions officials began to consider race when deciding how to fill any remaining freshman spots.

Abigail Fisher, a white student, claims this secondary policy violated her constitutional rights. She missed the 10% cutoff, and was not admitted to the University of Texas despite having higher grades than many admitted minorities, reports The New York Times. Even so, the 5th Circuit ruled against her.

Whether the Supreme Court will rule for or against Abigail Fisher is up for debate. The Court's makeup has changed significantly since 2003. Some, including noted legal scholar Erwin Chemerinsky, even believe that there are enough votes to overrule Grutter completely.

After Fisher, it's very possible that affirmative action in higher education will become a thing of the past.

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