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Deep divide over affirmative action at SCOTUS

The U.S. Supreme Court took a second look at admissions at the University of Texas Wednesday morning and by most accounts, the prognosis for its affirmative action policy is not good.  

The case before the justices, Fisher v. University of Texas, had already been heard in 2012 after a white student denied admission to the school lost at the Fifth Circuit, but the high court sent it back for further findings.

The university had set up admissions so that it automatically accepted Texas high schoolers in the top ten percent of their class. UT then evaluated the remainder of applicants based upon a number of factors and gave them two scores: one based on essays, leadership activities, and background, including race, and one based on grades and test scores.

Abigail Fisher, the student challenging that policy, had just average academic qualifications and the university argued that she wouldn’t have been admitted even if she had received a boost because of race.

(For a more detailed explainer from Vox, read here.)

A similar challenge to admissions at the University of North Carolina at Chapel Hill is pending in federal court in Winston-Salem, but has been stayed until the Supreme Court hands down its decision in Fisher.

Questioning at the argument confirmed that the justices were leaning along party lines.

Justice Antonin Scalia shared his own peculiar take on affirmative action, as shared here at Talking Point Memo:

Referencing an unidentified amicus brief, Scalia said that there were people who would contend that “it does not benefit African-Americans to — to get them into the University of Texas where they do not do well, as opposed to having them go to a less-advanced school, a less — a slower-track school where they do well.”

He argued that “most of the black scientists in this country don’t come from schools like the University of Texas.”

“They come from lesser schools where they do not feel that they’re — that they’re being pushed ahead in — in classes that are too — too fast for them,” Scalia said.

The court’s swingman, Justice Anthony Kennedy — already no fan of affirmative action — hinted near the end of argument that the time may have come to put the Texas policy out to pasture.

Because Justice Elena Kagan is not participating in the case, a Kennedy vote for the university would leave the Fifth Circuit decision upholding the program in place.

Here’s Adam Liptak from the New York Times:

Justice Anthony M. Kennedy devoted almost all of his questions to exploring whether the case should be returned to the trial court to allow the university to submit more evidence to justify its use of race in deciding which students to admit.

By the end of the unusually long and tense argument, Justice Kennedy indicated that the Supreme Court might have all the evidence needed to decide the case. That could mean that the Texas admissions plan is in peril and that affirmative action at colleges and universities around the nation may be in trouble as well.

For additional coverage of Wednesday’s argument, see the Washington Post here and the Los Angeles Times here.

The full transcript of the argument is available here.

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Deep divide over affirmative action at SCOTUS