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Professors look at affirmative action decision

Professors look at affirmative action decision

In 2003, when the Supreme Court ruled in favor of the affirmative action policy of the University of Michigan Law School in Grutter vs. Bollinger, Justice Sandra Day O’Connor made a prediction.

“The Court expects that 25 years from now,” she wrote in the majority opinion, “the use of racial preferences will no longer be necessary to further the interest approved today.”

Halfway through that time period, the court again ruled in favor of affirmative action on Thursday, rejecting Abigail Fisher’s claim that she was discriminated against in the University of Texas, Austin’s admissions process because she is white. The decision, with a vote of 4-3 due to Justice Elena Kagan’s absence, is thought by some to be a more groundbreaking ruling than that of 2003.

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“This is, I think, a bigger win for proponents of affirmative action than that was,” said Richard Primus, a constitutional law professor at the University of Michigan.

The case came from Ms. Fisher’s experience with UT Austin’s unique admissions policy called the Top 10 Percent Plan, which was adopted after lower courts invalidated the university’s previous affirmative action rules in 1996. The plan automatically accepts Texas students who graduate in the top 10 percent of their high school classes, and supporters say it ensures diversity despite high school segregation.

The Top 10 Percent Plan accounts for about 75 percent of UT Austin’s freshman class. Since Ms. Fisher did not graduate within the top 10 percent of her class, she was left to be evaluated by her academic achievement as well as something the university calls her “Personal Achievement Index,” which combines factors such as essays, work experience, extracurricular activities — and race.

By ruling against her, the court affirmed that, with continual evaluation of its efficacy, it is acceptable to consider race in college decisions. Justice Anthony M. Kennedy, who dissented in the 2003 case, wrote the majority opinion.

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“His opinion says we need to continually evaluate to see if the race-conscious decisions we’re using are appropriate,” Mr. Primus said. “It’s a more flexible decision.”

Professor Rebecca Zietlow, a professor of law and values at the University of Toledo College of Law, said most institutions are past the question of whether or not diversity is helpful.

“The question is,” she said, “what does it mean to treat people equally?”

The part of the constitution called into question by Ms. Fisher’s case is the Equal Protection Clause, a part of the Fourteenth Amendment that ensures equal protection under the law for all citizens. The trouble with equal treatment in education and admissions, Ms. Zietlow said, is it often assumes all students start on equal footing. Even elementary schools, she continued, still suffer from extreme segregation that affects graduation rates.

“The sad thing is, I think Justice O’Connor was wrong,” Ms. Zietlow said of the 25-year comment. “How much progress have we made?”

After Thursday’s decision, the answer is certainly “some” — though people will still debate in which direction that progress goes.

Since the case filing in 2013, Ms. Fisher has graduated from Louisiana State University.

Contact Elena Saavedra Buckley at: ebuckley@theblade.com, 419-724-6050, or on Twitter at @elenaSB_.

First Published June 24, 2016, 4:00 a.m.

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Former Supreme Court Justice Sandra Day O'Connor speaks during a forum in 2012.  (ASSOCIATED PRESS)
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