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How Supreme Court ruling on Texas could reduce affirmative action across US

The Supreme Court, which has shifted to the right, may use the Texas case to overturn the 2003 decision that achieving classroom diversity could justify the use of race-based affirmative action.

By Staff writer / February 21, 2012

The US Supreme Court may use a Texas case to overturn the 2003 decision achieved classroom diversity.

Molly Riley/Reuters/File

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Washington

The US Supreme Court’s decision on Tuesday to examine the race-based admissions plan at the University of Texas raises the possibility it may rule in a way that dramatically reduces the use of affirmative action plans at public colleges and universities across the country.

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At issue in the Texas case is whether that’s school’s use of affirmative action to supplement minority enrollment at the state’s flagship university violates the equal protection rights of nonminority students competing for the same places in the freshman class.

University officials relied on a Supreme Court decision in a 2003 case, Grutter v. Bollinger, to support its use of race in an attempt to achieve a critical mass of racial and ethnic diversity in every class taught at UT.

Critics say the effort is an abuse of the diversity rationale approved by the Supreme Court in 2003. Supporters say it is necessary to fulfill the university’s educational mission of providing a diverse learning environment.

Legal analysts said the court may use the Texas case to revisit – and perhaps overturn – the 2003 decision in which the majority justices established for the first time that classroom diversity could provide a compelling interest justifying the use of race-based affirmative action.

That decision in Grutter v. Bollinger involved an admissions program at the University of Michigan Law School. The justices voted 5 to 4 to uphold the race-based program.

The critical swing vote was cast by then-Justice Sandra Day O’Connor, who wrote in her decision that such race-based programs should be phased out as unnecessary within 25 years.  

Since then, Justice O’Connor has been replaced on the high court by Justice Samuel Alito, who is far less open to race-based admissions plans than was O’Connor.

In addition to this rightward shift at the court, Justice Elena Kagan, an affirmative action supporter, is recusing herself from consideration of the case. Justice Kagan worked on the Texas case as the Obama administration’s solicitor general before joining the high court.

“The last time the court considered affirmative action in higher education was the 2003” Grutter case, says Brian Fitzpatrick, a professor at Vanderbilt Law School. “It is possible the court could use this case to overturn Grutter’s permitting universities to use affirmative action for diversity purposes.”

But he notes that it is not the only potential outcome. “It is also possible the court will narrowly focus on the unique circumstances of the University of Texas,” he says.

For example, if the court was troubled by the university’s broad use of race to attempt to achieve diversity in every classroom at the university, the justices could strike down that portion of the university’s plan as being outside the guidance offered by the high court in the 2003 Grutter decision.

More problematic from the perspective of affirmative action supporters is the possibility that the justices use the Texas case to completely reexamine the diversity rationale that was narrowly approved in 2003.

“The court is right to take the case, because the justices must keep an eye on what schools are doing,” says Roger Clegg, president of the Center for Equal Opportunity and a long-time critic of race-based admissions programs.

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