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President to President
Molly Corbett Broad's weekly email newsletter to higher education leaders.

Special Edition: Supreme Court Hears Fisher v. UT

Vol. 13, No. 30

​In what could be a landmark case, the U.S. Supreme Court yesterday heard oral arguments in Fisher v. University of Texas at Austin (UT), which challenges the constitutionality of the university's use of race and ethnicity in its admissions process.

The case is on appeal from the U.S. Court of Appeals for the Fifth Circuit, which upheld a 2009 lower court ruling that UT did not infringe on the civil rights of two white students who were refused admission to the university. At issue is whether UT's admissions process violates the Equal Protection Clause of the 14th Amendment to the Constitution.

Observers in the courtroom noted that attorneys for Abigail Fisher, the one remaining petitioner, said the court does not need to overturn Grutter v. Bollinger, the 2003 University of Michigan case that upheld some uses of affirmative action, in order to rule in favor of their client. The eight justices who will decide the case (Justice Elena Kagan has recused herself because of her previous involvement in the case as U.S. Solicitor General) focused on the concept and measurement of "critical mass," which UT has argued it cannot achieve only by using the state-mandated program which guarantees admission to the top 10 percent of each Texas public high school graduating class. Several justices also expressed concern about the wisdom of changing the rules for colleges and universities so soon after the Grutter decision.

Ensuring diversity in higher education has long been a goal of ACE, and we continued to make the case for the educational benefits that flow from a diverse student body in advance of yesterday's arguments. In addition to filing an amicus brief in the Fisher case, ACE General Counsel Ada Meloy and I have authored opinion pieces in media outlets like The Chronicle of Higher Education, The Huffington Post and The New York Times. The case has garnered a great deal of attention in the press, and I recommend you visit ACE's Storify page to follow coverage of yesterday's arguments.

A decision in the case is expected in spring 2013.

Molly Corbett Broad
President of ACE