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Education Reporter

Civil Rights Office May Unwittingly Help End Affirmative Action
Just two months after the Departments of Justice and Education issued new federal guidance documents promoting the consideration of race in school admissions, the Supreme Court is set to review a case that may end educational affirmative action once and for all.

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Fisher v. University of Texas at Austin will mark the first time the Supreme Court has revisited its rulings on affirmative action in public college admissions in nearly a decade. Lawyers for Abigail Noel Fisher, a Texas student who says she was denied admission to the University of Texas at Austin, say the University's admissions plan relies on an overly-extended interpretation of Grutter v. Bollinger, the 2003 case in which judges ruled that the University of Michigan Law School could use race as a factor in admissions in order to help the school achieve racial diversity. The University of Texas seeks to achieve diversity not only among each entering class of students, but also across the major fields of study and at the classroom level - an extension of the "Grutter principle" that some argue is unconstitutional.

Abigail Fisher believes this overextension is the reason she was denied admission to the University in 2008. Adam Liptak explained in the New York Times:

Ms. Fisher's argument is that Texas cannot have it both ways. Having implemented a race-neutral program to increase minority admissions, she says, Texas may not supplement it with a race-conscious one. Texas officials said the additional effort was needed to make sure that individual classrooms contained a "critical mass" of minority students.

Fisher's lawyers agree that it's time for the Court to "clarify or reconsider" Grutter "to restore the integrity of the 14th Amendment's guarantee of equal protection." They also argued that the new federal guidance documents outlining admissible racially-based admissions guidelines mean the Court needs to revisit its rulings. Ironically, then, the new guidelines may indirectly help to abolish the affirmative action policies they were written to encourage.

This isn't the first time the University of Texas has played a role in the dispute over race-based college admissions. Minority enrollment in the University started dropping after the Fifth Circuit Court struck down the University's race-based policies in 1996. The Texas legislature responded in 1997 with the "Top Ten Percent Law," which required Texas state universities to automatically admit students who had finished in the top ten percent of the class at a Texas high school. This increased minority enrollment, and the policy is still in effect today.

Both opponents and supporters of affirmative action say the Court's decision to hear Fisher v. University of Texas at Austin may signal its desire to do away with higher education's habit of considering race in admissions decisions. "I think it's ominous," said Columbia University President Lee Bollinger. "It threatens to undo several decades of effort within higher education to build a more integrated and just and educationally enriched environment." Hans von Spakovsky, a legal fellow at the Heritage Foundation, welcomes the fall of affirmative action: "Any form of discrimination, whether it's for or against, is wrong."

The makeup of the Supreme Court has changed significantly since it last examined affirmative action in 2003, and many believe the new justices are unlikely to tolerate current admissions practices. Justice Alito, for example, has previously voted against the use of racial classification. Chief Justice Roberts has also argued against such practices before. In a 2007 decision limiting the use of race to achieve integration in school districts he wrote, "Racial balancing is not transformed from 'patently unconstitutional' to a compelling state interest simply by relabeling it 'racial diversity.'"

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