Adam Winkler: In Affirmative-Action Case, History of 14th Amendment Is Inconvenient





Adam Winkler is a constitutional-law professor at UCLA.

The Supreme Court heard arguments Wednesday (PDF) in a potentially landmark case that could spell the end of race-based affirmative action in higher education. The case involves a challenge to the University of Texas’s admissions policy that makes race one relevant factor—along with the usual assortment of other criteria, like SAT score, grade-point average, being a legacy, and skills such as playing football or the tuba. Abigail Fisher, a white applicant who was denied admission, claims that UT’s policy violates the 14th Amendment, which guarantees the “equal protection of the laws.”

Judging from the justices’ comments at oral arguments—which, lest we forget, can be misleading—her prospects of winning look quite good.

Although the Supreme Court upheld the use of race as an admissions factor less than a decade ago, the current conservatives on the court were dismissive of the rationale used in that case. Chief Justice John Roberts suggested UT’s effort to seek a “critical mass” of minority students was unworkable; Justice Antonin Scalia said Fisher “was not treated fairly”; and Justice Samuel Alito suggested that UT’s policy privileges successful minorities over the interests of whites “whose parents are absolutely average in terms of education and income.”...



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