The Supreme Court Is Going To End Affirmative Action As We Know It

Affirmative ActionA University of Michigan student protests a ban on affirmative action.

Photo: Associated Press/Ebrie Benton

The U.S. Supreme Court will hear arguments Wednesday in one of the most politically charged cases of the term – a challenge to the University of Texas at Austin’s affirmative action policy.The Supreme Court last upheld affirmative action in 2003, ruling the University of Michigan could use race as one factor to achieve a “critical mass” of minorities necessary for a diverse student body.

But a lot has changed since Sandra Day O’Connor wrote that opinion, including her replacement by right-leaning Samuel Alito.

Here’s why the current court will probably kill or severely limit affirmative action:

  • Alito, O’Connor’s replacement, belonged to the Concerned Alumni of Princeton, which opposed affirmative action at the university, The New York Times has reported.
  • Justice Anthony Kennedy, a key swing vote on the largely court, wrote the dissent in 2003 that opposed the majority’s decision to uphold the Michigan affirmative action policy.
  • At least four Supreme Court justices decided to review the Fifth Court decision that upheld UT’s affirmative action policy. It’s not too common for the high court to review a decision just to affirm it, former Supreme Court clerk Christopher Walker pointed out to Business Insider.

At UT, the school got much more diverse by admitting students in the top 10 per cent of each high school in the state. Separately, the school used race as a factor for students who didn’t make it in through the top 10 per cent program.

The nation’s highest court will likely rule that both these policies aren’t necessary to achieve diversity, top Supreme Court lawyer Carter Phillips has told Business Insider.

At the end of the day, Phillips isn’t sure what “if anything” will be left of the Supreme Court’s original decision to uphold affirmative action.

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