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How the Supreme Court Could Rule on Affirmative Action at UT


Update: It turned out the Supreme Court went in an entirely different direction - returning the ruling to a lower court, essentially on a technicality. 

Read more here: Supreme Court Punts on Affirmative Action’s Merits; Returns Ruling to Lower Court

Original Post: This week, the U.S. Supreme Court is expected to hand down three major decisions that will affect Texans—including Fisher v. University of Texas.  That case asks the question if it’s constitutional to consider race in the college admissions process.

In 2008, Austin High School graduate Abigail Fisher filed a lawsuit against UT after she was rejected from the university. 

“There were people in my class with lower graders who weren’t in all the activities I was in and were being accepted into UT and the only difference between was the color of our skin," Fisher said in a YouTube video posted by her lawyer, Edward Blum. Blum is the director of the Project on Fair Representation.

At UT, there's a two-tiered process to be accepted. Texas students can graduate in the top ten percent of his or her high school class. UT allocates up to 75 percent of the incoming freshman spots for those students. The rest of the applicants are considered based on a variety of factors – including GPA, SAT Scores, extracurricular activities, and special circumstances, including socioeconomic status, languages spoken in the home, and race and ethnicity.

The university says race is only one of many factors that is considered in the admission process.

"It's a factor within a factor," says reporter Nikole Hannah-Jones. She wrote a piece for ProPublicaabout the case that found Fisher’s race probably wasn't the reason Fisher was rejected from the university:

"Court records show her grade point average (3.59) and SAT scores (1180 out of 1600) were good but not great for the highly selective flagship university. The school's rejection rate that year for the remaining 841 openings was higher than the turn-down rate for students trying to get into Harvard. As a result, university officials claim in court filings that even if Fisher received points for her race and every other personal achievement factor, the letter she received in the mail still would have said no."

So what could happen this week?

1. The Supreme Court rules in favor of the University of Texas

“If UT wins, what we are doing now, admitting under the 10 percent rule and having a separate affirmative action program on the side, that will continue,” says UT Law Professor Scott Powe. “And, indeed, if UT wins, affirmative action as it’ s practiced now will continue across the nation,".

2. The Supreme Court rules in favor of Abigail Fisher.

Powe says if that happens, there are two possible results:

A. The Supreme Court would rule the constitution is colorblind.

That means the use of race as a factor in admissions is unconstitutional and could end affirmative action policies at university's nationwide.

B. The Supreme Court upholds affirmative action – but not at UT. 

Powe says he believes this is how the court will rule.

"The legal standard the Supreme Court will apply is there must be a compelling state interest [to have an affirmative action program] and achieving diversity has been held as a state interest in the Grutter [v Bollinger] case," Powe says.

That's the 2003 case when the Supreme Court upheld affirmative action policies at the University of Michigan Law School.

Powe says the problem for UT could come down to the Ten Percent rule.

"Because we can achieve a requisite measure of diversity through the top 10 percent, there’s probably no need for additional affirmative action program on top of that. Then ten percent is going to be, I think, our Achilles heel.”

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