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The public policy blog of the American Enterprise Institute
Affirmative action advocates who think Monday’s ruling by the Supreme Court would lead to ultimate victory are going to be disappointed when it goes back to the lower court for a second look, an attorney representing the plaintiff predicted Monday.
“If they’re excited about this ruling, I think it’s gravely misplaced,” said Edward Blum, a visiting scholar at the American Enterprise Institute, who was speaking as director of the Project on Fair Representation.
In a 7-1 ruling, the Supreme Court sent back the case of Abigail Fisher vs. University of Texas to the Fifth Circuit Court of Appeals, with instructions to seek “race-neutral alternatives” as criteria for university admissions before resorting to race-based preferences. Justice Elena Kagan recused herself from the case.
Blum said that the near-unanimity of the decision demonstrates that the issue reaches “across an ideological divide.” He noted that the high court’s instruction to the lower court to apply “strict scrutiny” – the highest standard of judicial review – suggests that “University of Texas’ reintroduction of race will fail.”
“That little phrase has been around for a long time,” Blum said, adding that the impact of the Court’s decision will be widely felt. Universities will be “put on notice that they must end their practices” and turn to “race-neutral means of reaching campus diversity.”
Today’s decision “begins the restoration of the original color-blind nature of our civil rights laws,” he said.
Bill Powers, the president of UT, which in 2006 abandoned the Texas Legislature’s “top 10 percent plan,” by which any student finishing in the top 10% of the class would be granted admission to college, told The Associated Press on Monday that the university will continue its racial preferences and plans to defend them when the case returns to the Fifth Circuit.
The case of Abigail Fisher, a white college applicant who was denied admission to the University of Texas in 2008, is one of two that Blum’s group had before the court this term. The project is also awaiting the Supreme Court’s ruling on Shelby County vs. Eric Holder, which focuses on whether Congress’ renewal of Section 5 of the Voting Rights Act violates the 10th Amendment.
Fisher has since graduated from Louisiana State University, and has taken a job in Austin, Texas, where UT’s main campus is located. Standing with Blum and her parents at a press conference at AEI, she said she was “just honored and grateful” to have participated in a case with such widespread implications and it reinforced in her the decision to stick by her ideals.
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