Supreme Court Debates Affirmative Action

San Francisco Chronicle, October 10, 2012

A deeply divided Supreme Court on Wednesday squared off over the future of affirmative action in college admissions, with liberals defending a university’s right to assemble racially diverse student bodies, and conservatives worrying about the constitutional rights of those who are denied admission because of their race.

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At the end of a lengthy oral argument over admissions policies at the University of Texas, it seemed highly unlikely that a majority of the justices would announce a ringing endorsement of racial-preferences.

But it also was unclear whether there were five votes willing to bar universities from considering race in their admissions process. That would renounce the court’s most recent affirmative action decision in 2003 that universities could use race in a limited way to achieve a “critical mass” of diversity that benefits all students.

That decision will likely come down to Justice Anthony Kennedy. The veteran justice has agreed in theory that campus diversity is the kind of compelling government interest that can sometimes license an otherwise forbidden consideration of race.

But he dissented in that 2003 case, Grutter v. Bollinger, and has never voted to uphold an affirmative action plan that has come before the court.

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Fisher’s attorney, Bert Rein, did not ask the court to overturn Grutter but said the university had not shown the necessity for racial considerations that Grutter demanded.

Texas, he said, had become one of the nation’s most diverse universities because of the policy of admitting the top 10 percent of each Texas high school, which yields a diverse crop of students because the schools often are dominated by one race.

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