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July 28, 2014, 10:37 pm

Court should defend affirmative action

The Supreme Court has agreed to take up the controversial issue of affirmative action once again by looking at the use of race in college admissions.

The court announced Tuesday that it would hear the case of Fisher v. University of Texas in its next term.

Abigail Fisher, a white student who was denied admission to the University of Texas, filed a lawsuit against the school alleging racial discrimination.

A broad ruling in favor of Fisher could threaten affirmative-action at many public and private universities.  

The Fisher case will mark the court’s first look at affirmative action in higher education since Grutter v. Bollinger in 2003 when the court decided to endorse the use of race as one of many factors in college admissions.

But the Supreme Court has changed dramatically since 2003. The most significant change is that Sandra Day O’Connor — the court’s swing vote and author of the Grutter decision — departed in 2006, leaving Justice Antony Kennedy as the swing vote in close decisions.

Her successor, Justice Samuel A. Alito Jr., appears more hostile to affirmative action.

Another factor is that Justice Elena Kagan, who might be expected to vote with the liberal-leaning justices in support of affirmative action, is not taking part in the Texas case. Her absence is probably the result of the Justice Department’s participation in the case in the lower courts when she was the Obama administration’s solicitor general.

This means the decision will probably come down to Justice Kennedy.

“Anthony Kennedy is unpredictable on this. He can be found on both sides of this issue,” said University of Texas law professor Sanford V. Levinson. “One can predict that the briefs and the oral arguments in this case will be directed exclusively at Anthony Kennedy.”

Affirmative action programs have improved diversity in colleges and in the workplace.

The Supreme Court should uphold the 2003 decision in Grutter v. Bollinger endorsing the use of race as a factor in college admissions.

The court should reaffirm the educational benefits of diversity through affirmative action is good for students, colleges and American society.