Colorlines, News Analysis, Posted: Oct 11, 2012

 Affirmative action has resisted multiple attempts on its life. But this week, opponents will take another whack at it. Nine years after the Supreme Court last affirmed universities’ rights to consider race in their admissions work, the Court is set to consider again the constitutionality of affirmative action today when it hears oral arguments in Fisher v. University of Texas. Many supporters of the initiative are skeptical it’ll survive.

As Colorlines.com’s Victor Goode wrote, the legal arguments buttressing affirmative action have been steadily whittled away, bringing it to a precarious place before a conservative court that’s openly hostile to race-based considerations in public policy. Since its inception, proponents of affirmative action have been forced to trade arguments of equity for a rationale favoring diversity, and in so doing, they may have silenced the most salient argument for the policy: Racial inequity persists, and proactive measures of racial justice are needed to address it.

Today, there are just two legally permissible arguments for affirmative action, says Jeff Milem, professor of educational policy at the University of Arizona. And the primary rationale—equity—has never been a real part of universities’ calculus. In order to argue that affirmative action is necessary to remedy past discrimination, schools would have to present evidence showing that they’ve previously discriminated against the groups they’re now going to great lengths to admit. Doing so would open them up to litigation from students of color who’d been denied. Read more here.