Supreme Courts agrees to revisit affirmative action

Published: Thursday, Feb. 23 2012 9:30 p.m. MST

This Wednesday, Jan. 25, 2012 file photo shows the U.S. Supreme Court Building Washington. The court is setting an election-season review of racial preference in college admissions, agreeing Tuesday, Feb. 21, 2012 to consider new limits on the contentious issue of affirmative action programs.

J. Scott Applewhite, Associated Press

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For the past 25 years the courts have upheld the right of colleges to consider race and ethnicity in admissions. But on Tuesday, the Supreme Court agreed to revisit affirmative action in state-college admissions.

The case before the court comes from Abigail Noel Fisher, a white applicant who was denied admission to the undergraduate program at the University of Texas at Austin. "Although Fisher’s record in high school was not good enough to guarantee her admission, she believes she was turned away solely because of her race," reports Adam Winkler for the Daily Beast. She accuses the University of Texas of “blatant racial balancing,” in an effort to ensure a diverse student body.

Supporters of affirmative action including Lee Bollinger, president of Columbia University, champion the importance of diversity on campus. Affirmative action will help "unify the country, overcome divisiveness, and dispel the unfounded 'jealousies and prejudices,'" he wrote in an op-ed for the Washington Post.

Some who oppose affirmative action suggest it creates racial backlash. In an op-ed for The Los Angeles Times, Gregory Rodriguez asserts that affirmative action should be abolished in order to prevent "destructive white backlash" that will damage an increasingly diverse America. Rodriguez, director of social cohesion for the New American Foundtion, urges halting the initiatives that create a "perception among whites that the deck has been stacked against them." While he admits that the programs, when first conceived, were filled with good intentions, they have ultimately outgrown their intended benefits to "a small percentage of the U.S. population."

"This case presents the court with an opportunity to clarify the boundaries of racial preferences, and perhaps those boundaries are so fuzzy that the court will go all the way to reconsider whether race would be considered at all," said Edward Blum, director of the Project on Fair Representation, in an interview with Scott Jaschik for Inside Higher Ed.

Contemplating potential outcomes Jaschik considers how the makeup of the court will impact this case. "Most observers see three likely votes to back the right of colleges to consider race and four against," he wrote. "Justice Elena Kagan, who worked on the case while U.S. solicitor general (in defense of the consideration of race), has recused herself."

Which leaves Justice Kennedy. And the possible of a 4-4 vote, which would uphold the lower court decision and allow race to continue as a factor in admissions.

Many observers, notably Dahlia Lithwick at Slate, argue that based on his record Kennedy will strike down affirmative action as unconstitutional. But not everyone agrees. For example, a legal observer at the American Prospect blog argues that Kennedy is far too politically savvy to strike down affirmative action.

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