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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.

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“Instead of preferences being phased out, in some ways they are getting worse – as our studies have documented,” Mr. Clegg said. “What’s more, as our nation becomes more and more multiracial and multiethnic, it becomes more and more untenable for our public institutions to label, sort, and discriminate on the basis of skin color and national origin.”

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Ted Shaw, a Columbia Law School professor and former president of the NAACP Legal Defense Fund, says the decision to take the Texas case is “potentially troubling news for colleges and universities and those who support efforts to diversify institutions of higher education.”

At the University of Texas the vast majority of minority freshman enter by means of a state law that requires race-neutral admission for anyone in the top 10 percent of a Texas high school class. The university adopted a race-based supplement plan after the high court’s ruling in 2003.

It is that supplement plan that is at the center of the legal fight over the use of race in Texas admissions.

Shaw identifies four potential routes the Supreme Court  might follow in the Texas case. “The court could uphold the University of Texas plan, it could strike it down as unnecessary in light of its race-neutral ‘Ten Percent’ plan without overturning Grutter, or it could abandon res judicata principles and revisit its 2003 decision in Grutter,” he says.

In addition, Shaw said the justices could dismiss the case as moot given that the plaintiff is about to graduate from the other university she applied to after being rejected by Texas.

Given those options, Shaw is not optimistic. He notes that the Supreme Court under Chief Justice John Roberts is more conservative on this issue than was the court under Chief Justice William Rehnquist – with Justice O’Connor.

“In its 2007 decision striking down voluntary school desegregation efforts, [the Roberts Court] evinced hostility to race-conscious diversity efforts,” Shaw said.

With Justice Kagan recused, Justice Anthony Kennedy’s potential swing vote becomes essential in an eight-member court, Shaw says.

An evenly divided court would affirm the lower court’s ruling upholding the Texas race-based plan. But if the same five justices that voted against a race-based plan in 2007 join forces in the Texas case, the plan may be in trouble.

“The court grant is not entirely a surprise,” Shaw said. “Affirmative action and diversity opponents have been looking for the ‘right case’ to overturn Grutter since the day it was decided.”

Joshua Thompson, an attorney with the conservative Pacific Legal Foundation, said the court’s decision to take up the Texas case was “good news for everyone who believes in equal rights and equal opportunities.”

“It is time for the court to take another look at this area of law, and stake out a clear position against race-based preferences and discrimination in university admissions,” Mr. Thompson said.

“Racial diversity in a student body does not guarantee a diversity of experience and perspectives,” he said. “A policy of race-based preferences and discrimination in admissions is not just unfair, it is unconstitutional under the equal protection clause of the 14th Amendment.”

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