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Texas affirmative action plan in trouble at court

Associated Press Published: October 11, 2012

WASHINGTON (AP) — The fate of the University of Texas' affirmative action program rests with the Supreme Court, where skeptical conservative justices indicated they are ready to impose new limits on the use of race in college admissions.

Liberal justices more supportive of affirmative action worried variously at Wednesday's argument that the court would either eviscerate its 9-year-old ruling upholding the use of race or enmesh federal judges around the country in evaluating college admissions programs.

Depending on how broadly the court rules, the decision could affect not only public colleges but most private ones as well. That's because federal civil rights law prevents discrimination by institutions that receive federal money.

"A decision condemning Texas' admissions procedures might well be taken, depending on how it was written, to confound and restrict (our) effort to assemble diverse student bodies," 37 small private colleges in 12 states told the court in a written submission. More than five dozen private schools, including the eight Ivy League colleges, chimed in to support the Texas plan.

The court heard arguments in a challenge to the program from a white Texan who contends she was discriminated against when the university did not offer her a spot in 2008.

Abigail Fisher, 22, the rejected student who sued, was among the hundreds of spectators at the arguments. Also in attendance was retired Justice Sandra Day O'Connor, who wrote the majority opinion in a 2003 case, Grutter v. Bollinger, that upheld the use of race in college admissions.

Changes in the court's makeup since then, especially O'Connor's departure, could affect the outcome of the Texas case. Justice Samuel Alito, O'Connor's successor, has voted consistently against racial preferences since he joined the court in 2006 and appears likely to side with Fisher.

Among the liberal justices who looked more favorably on the Texas admissions system was Justice Sonia Sotomayor. She told Bert Rein, Fisher's Washington-based lawyer: "So you don't want to overrule Grutter, you just want to gut it."

Justice Stephen Breyer, a part of the majority in 2003, said he feared the court would put federal judges in charge of "dictating the policy of admission of all these universities."

Texas says the program is necessary to provide the kind of diverse educational experience the high court previously has endorsed. Along with race, the university considers community service, work experience, extracurricular activities, awards and other factors as it seeks to fill out its incoming classes. The bulk of its slots go to students who are admitted based on their high school class rank, without regard to race.

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