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Affirmative action heads back to the Supreme Court

In a case with implications for admissions policies at UNC-Chapel Hill, the U.S. Supreme Court agreed today to review for a second time admissions policies at the University of Texas at Austin.

The high court first reviewed the case filed by Abigail Fisher, a white student denied admission to the University of Texas at Austin allegedly because of her race, in 2012. In a 7-1 decision the following spring, the justices sent Fisher v. University of Texas at Austin back to the 5th U.S. Circuit Court of Appeals for further review.

Justice Anthony Kennedy writing for the Court said that “because the Fifth Circuit did not hold the University to the demanding burden of strict scrutiny articulated in Grutter and Regents of Univ. of Cal. v. Bakke, its decision affirming the District Court’s grant of summary judgment to the University was incorrect.”

“[S]trict scrutiny does require a court to examine with care, and not defer to, a university’s ‘serious, good faith consideration of workable race-neutral alternatives,’” Kennedy added.

The appeals court did that and upheld the university’s admissions policies again in July 2014, finding that they withstood the strict scrutiny test.

In the second petition filed at the court and granted today, Fisher’s attorneys ask the court to “strike down UT’s unjustified use of race, and once again make clear that the Equal Protection Clause does not permit the use of racial preferences in admissions decisions where, as here, they are neither narrowly tailored nor necessary to meet a compelling, otherwise unsatisfied, educational interest.”

How the high court rules next term in Fisher will have some bearing on the case filed in federal court here against UNC-Chapel Hill in November, alleging similar flaws in the university’s admission policies. (A similar lawsuit was filed in Massachusetts federal court against Harvard by the same group on the same day.)

As SCOTUSblog’s Lyle Denniston described the Harvard and UNC lawsuits:

The basic thrust of the new lawsuits is that Harvard and the flagship university in North Carolina are using admissions programs that cannot satisfy the tough constitutional test for judging race-based policy — “strict scrutiny.”  But their broader theme is that the Supreme Court’s affirmative action efforts beginning with the Bakke ruling have failed to end racial bias in admissions programs, so it is now time to overrule Bakke and at least one other decision.

In the lawsuits, filed under the name “Students for Fair Admissions Inc.,” attorneys for plaintiffs — selected after a nationwide search by backers of Project for Fair Representation — argue that diversity at the schools can be achieved by race-neutral alternatives and that public colleges and others receiving federal funds should be ordered to end the use of race in admissions altogether.

The same attorneys representing Fisher at the Supreme Court are representing the students in the UNC case here, which is pending in Winston-Salem and is now assigned to U.S. District Loretta Copeland Biggs, who took her seat on that court this past December.

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