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SCOTUS to examine the constitutionality of affirmative action in higher ed

The U.S. Supreme Court in Washington, D.C.
The U.S. Supreme Court in Washington, D.C.
Mark Wilson/Getty Images

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The Supreme Court has agreed to hear a case that will affect the future of affirmative action at the nation’s colleges and universities. This case is an appeal from a white student in Texas who seeks an end to "racial preferences" in college admissions but since the court’s calendar is filled through the spring, the court will not hear arguments until October.

In 1978, by a 5-4 vote the Supreme Court ruled that universities can consider race as a factor in admitting new students. Then in 2004, the high court confirmed that view in another 5-4 ruling but Justice Sandra Day O’Connor retired soon afterward and was replaced by Justice Samuel Alito. In 2007, Justice Alito and Chief Justice John Roberts joined together in a ruling that banned the use affirmative action in elementary or high schools to achieve racial balance.

The case to be heard before the Supreme Court in October, Fisher vs. University of Texas, will give the court present configuration the chance to rule on the constitutionality of affirmative action in higher education.

California already has a constitutional ban on affirmative action in higher education. In November of 1996, 54% of voters accepted Proposition 209 which amended the state constitution to prohibit state government institutions from considering race, sex, or ethnicity, specifically in the areas of public employment, public contracting or public education. That ruling has been challenged but in August of 2010, the California Supreme Court found for the second time that Proposition 209 was constitutional. Five Supreme Court justices are thought to be opposed to “racial balancing” policies and Justice Elena Kagan has recused herself in the Fisher case.


Joshua P. Thompson, Staff Attorney, National Litigation Center, Pacific Legal Foundation, described as a public interest legal organization that fights for limited government, property rights, individual rights and a balanced approach to environmental protection

George Washington, Attorney with the Coalition to Defend Affirmative Action (BAMN) and Scheff, Washington & Driver, a labor and civil rights law firm in Detroit