June 29, 2015 Practice Points

Affirmative Action: SCOTUS to Rehear Case Regarding Race in College Acceptance

By Aaron VanNostrand

Just days after issuing a decision requiring all states to recognize same-sex marriage, the Supreme Court announced on Monday that during its next term, it will rehear a case implicating another significant social issue: affirmative action.

The case deals with issues raised with the admissions process used by the University of Texas—specifically, the university's consideration of race in determining which students to accept. The case was brought by Abigail Fisher—a white woman—after she was denied admission to the school. In Texas, any high school senior who graduates in the top ten percent of his or her class receives automatic admission into any Texas state university. For those who do not fall within the top ten percent, some receive racial preferences.

This will be the second time the Supreme Court of the United States hears Fisher's case. In 2012, the Court heard the appeal and eight months later issued a decision requesting that the lower courts take another look at the methods and practices used by the University of Texas to achieve diversity. In 2014, the Fifth Circuit again upheld the University's program, the order from which Fisher now appeals. There, the court concluded that UT's consideration of race in the admissions process was limited, necessary, and narrowly tailored to meet the compelling interest of attaining student-body diversity. In stark contrast to the sentiments expressed by the Fifth Circuit, Fisher's counsel made the following request of the Supreme Court:

[S]trike 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.

Last year, the Supreme Court issued a 6–2 decision which provided that individual states may prohibit universities from considering race as a factor for admissions. The ruling did not, however, call into question the validity of such practices in states without said prohibitions. Oral arguments for Fisher v. University of Texas are set to occur this fall.

Keywords: minority trial lawyer, litigation, affirmative action, race, college admissions

Aaron VanNostrand is with Goldberg Segalla in Buffalo, New York.


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