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October 10th, 2012
10:59 AM ET

Toobin: Difference between 2003 affirmative action case and now is 'the Supreme Court is different'

The case of Fisher v. University of Texas at Austin before the U.S. Supreme Court today could officially do away with affirmative action as we know it. The case could result in a rare 4-4 tie because Justice Elena Kagan has recused herself. But the issue is hardly new.

White student Abigail Noel Fisher sued the University of Texas after her college application was rejected in 2008. Texas provides admission for students in the top 10% of high school and the rest of the applicants are in a pool where race is taken into consideration. CNN Senior Legal Analyst Jeffrey Toobin, author of "The Oath: The Obama White House and the Supreme Court," joins Soledad on “Starting Point” this morning with more on the case and its possible outcome.

Affirmative action came up in another case in 2003, when Justice Sandra Day O'Connor decided that race may be used as one factor in admissions. The current case is a direct challenge to that decision.

The main difference between this case and the original case in 2003 is “the Supreme Court is different.”

“The facts are not significantly different. Every court that has looked at this issue since 2003 has simply followed Justice O’Conner’s instructions,” Toobin says. “Certainly the only implication you can draw by the fact that the Supreme Court agreed to hear this case is at least some justices think Justice O’Conner was wrong and they want to get rid of the consideration of race and affirmative action in university admissions.”

“This case really focuses on the 14th Amendment, and basically what Ms. Fischer says is, ‘Look, by considering race, you are not treating individuals as individuals. You are using racial categories, and that’s what the 14th Amendment was designed to combat,’” Toobin adds.

Toobin says the university disagrees and is arguing that “the educational environment is richer, is made better” through affirmative action.

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