Civil and Human Rights

US Supreme Court divided on affirmative action

By Chantal Valery (AFP)


WASHINGTON — The US Supreme Court appeared divided Wednesday on a challenge to affirmative action as practiced at the University of Texas, a case with broad implications for racial diversity in US higher education.


The court, which will hand down its ruling in 2013, devoted more time than scheduled to the case of Abigail Fisher, a white student who says she was denied admission to the University of Texas at Austin because of the color of her skin.


After Elena Kagan’s recusal from the case, eight rather than the usual nine justices will decide whether the young woman’s constitutional rights were violated and whether a policy that considers race as a factor in university admissions decisions is discriminatory.


The university’s lawyer, Gregory Garre, supported by Solicitor General Donald Verrilli, came under often hostile questioning from the court’s four conservative justices while three liberal justices defended the goal of racial diversity in higher education, as approved in a 2003 Supreme Court decision.


It is the first time the high-level panel is revisiting the issue after its “Grutter v. Bollinger” decision, which determined that racial quotas do not violate the US constitution.


Should it decide to reverse course, the court’s decision would have an impact on all US universities, both private and public.


Since 2003, the makeup of the high court has changed, “creating a conservative majority willing to strike down precedents upholding diversity-focused admissions programs,” said Elizabeth Wydra, chief counsel at the Constitutional Accountability Center.


In the end, Justice Anthony Kennedy could be the deciding vote in the case. While in favor of diversity in 2003, he asked several skeptical questions Wednesday.


At the prodding of Justice Sonia Sotomayor, the panel wanted to know to what degree racial diversity should be maintained.


“Could you tell me what the critical mass” should be, asked Sotomayor, who is Hispanic and a fervent advocate of affirmative action.


“The point is to create an environment where everyone develops a certain citizenship in a diverse society,” said Verrilli, who represents the views of the administration of President Barack Obama.


“Our strength comes from different races, different cultures,” he said.


Bert Rein, arguing against the University of Texas’ admissions policy, called it an unacceptable “invasion of the equal protection clause” under the US constitution.


“This is a constitutional injury,” he said in his closing argument.


After the oral arguments, Fisher issued a statement expressing hope that the court would strike down the policy.


“My parents always taught me that it is wrong to discriminate. I hope the Supreme Court will decide that all future University of Texas applicants will compete without their race or ethnicity used in the school’s admissions process,” she said.


Kagan, the newest justice, recused herself because, as a former solicitor general, she was the Obama administration attorney the US government before the court.


Should a tie vote occur among the eight justices deciding the case, a lower appellate court’s ruling upholding the University of Texas’ admissions policies would be sustained. That ruling however would not serve as a national precedent in the event of future court challenges.


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