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Penn Law Professor Theodore Ruger comments on SCOTUS affirmative action case

October 10, 2012

When the Supreme Court hears oral arguments today in the closely watched affirmative-action case Fisher v. University of Texas, a key issue facing the justices is whether to follow or overrule recent precedent, according to University of Pennsylvania Law School Professor Theodore Ruger, who filed an amicus brief in the case.

Ruger, a constitutional expert whose brief on behalf of college basketball coaches defended affirmative action in higher education, offered the following commentary:

“Less than a decade ago, the Supreme Court in Grutter purported to resolve for at least a generation going forward the crucial question of whether universities can retain the freedom to make their own admissions decisions about individual applicants whose personal backgrounds contribute to overall campus diversity. In so ruling the Court also recognized the compelling and enduring societal gains that we all share from developing a diverse cohort of future leaders. The Fisher case should be an easy one based on existing precedent, and result in affirmance of the lower court and the constitutionality of the University of Texas admissions policy. But there is a possibility that some Justices on the current Court will use this case as an opportunity to overrule recent precedent and impose new restrictions on university discretion.”

The case being argued today was brought by Abigail Fisher, a white woman who says that her race was held against her when she was turned down for admission to the University of Texas four years ago. The university maintains that it should be free to consider race in assembling a diverse student body, as part of its academic and societal mission. The Supreme Court endorsed that view by a 5-4 decsion in 2003 in the case Grutter v. Bollinger involving admissions to the University of Michigan Law School.