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Breaking: U.S. Supreme Court will review University of Texas affirmative action case

The U.S. Supreme Court announced today that it will review a lawsuit against the affirmative action policies of the University of Texas at Austin. According to Inside Higher Ed:

The plaintiffs argue that because Texas uses a statewide “10 percent” plan – in which students in the top 10 percent of their high school classes are automatically admitted to the public college of their choice – the state’s flagship university can achieve a diverse student body without race-based policies. (Many Texas high schools have enrollments that are overwhelmingly made up of members of particular racial or ethnic groups, so the plan provides a steady stream of black and Latino students to UT Austin.)

The university and other defenders of affirmative action argue that just because a university can achieve some diversity without the consideration of race and admissions does not mean that it may not also consider race and ethnicity to achieve a higher level of diversity.

Jennifer Gratz, the plaintiff in the 2003 Supreme Court decision Gratz v. Bollinger–which struck down the University of Michigan’s racial quota system–weighed in on Facebook:

This lawsuit exploits one somewhat-little-known and rarely (if ever) followed caveat in the Gratz/Grutter decisions — that is that if “diversity” can be achieved without race preferences then universities cannot use race preferences. Prior to my lawsuit against Michigan, Cheryl Hopwood sued the University of Texas — and won. Because of this victory from 1997 through 2003 race preferences were unconstitutional at the University of Texas and in that time Texas still touted that it could achieve a diverse campus. Therefore, Texas showed that they were able to achieve the so-called compelling state interest of diversity without engaging in discrimination by way of race preferences.

Justice Elena Kagan–a likely supporter of the affirmative action–may recuse herself, tipping the balance against the university:

In a sign that is likely to worry supporters of affirmative action (and to cheer critics of the practice), Justice Elena Kagan announced that she took no part in consideration of the appeal seeking a Supreme Court review — a likely sign that she will not take any part in the actual review. Kagan did not announce why, but conservative legal bloggershave been calling on her to recuse herself because of her work as U.S. solicitor general filing a brief in support of the University of Texas. If she continues to recuse herself, a justice thought to be supportive of affirmative action will not be voting.

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