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The court said Tuesday it will return to the issue of affirmative action in higher education for the first time since its 2003 decision endorsing the use of race as a factor in admissions. This time around, a more conservative court is being asked to outlaw the use of Texas' affirmative action plan and possibly to jettison the earlier ruling entirely.
A broad ruling in favor of the student, Abigail Fisher, could threaten affirmative action programs at many of the nation's public and private universities, said Vanderbilt University law professor Brian Fitzpatrick.
A federal appeals court upheld the Texas program at issue, saying it was allowed under the high court's decision in Grutter vs. Bollinger in 2003 that upheld racial considerations in university admissions at the University of Michigan law school.
The Texas case will be argued in the fall, probably in the final days of the presidential election campaign, and the changed makeup of the Supreme Court could foretell a different outcome. For one thing, Justice Samuel Alito appears more hostile to affirmative action than his predecessor, Justice Sandra Day O'Connor. For another, Justice Elena Kagan, who might be expected to vote with the court's liberal-leaning justices in support of it, is not taking part in the case.
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