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72 Md. L. Rev. Endnotes 1 (2012-2013)

handle is hein.journals/endnot72 and id is 1 raw text is: CASTING SHADOWS: FISHER v. UNIVERSITY OF TEXAS ATAUSTIN AND THE MISPLACED FEAR OF TOO MUCH DIVERSITY SUSANNAH W. POLLVOGT* Well, I thought that the whole purpose of affirmative action was to help students who come from underprivileged backgrounds, but you make a very different argument that I don't think I've ever seen before.1 Justice Alito I. INTRODUCTION Justice Alito's comment, made during the recent oral argument before the Supreme Court of the United States in Fisher v. University of Texas at Austin,2 is troubling on many levels. Significantly, the comment suggests thatJustice Alito has not recently reread Regents of the University of California v. Bakkes or Grutter v. Bollinger4-the two Supreme Court decisions that will likely control the outcome in Fisher. Bakke and Grutter acknowledged two possible justifications for race- conscious admissions policies, and the justification these cases ultimately endorse is the one Justice Alito appears to be unfamiliar with. Specifically, per Bakke and Grutter, the two possible bases for the use of race-conscious admissions policies are: (1) remedial justifications and (2) educational excellence justifications.a Remedial justifications posit that, because past race discrimination in admissions decisions limited the number of racial minorities who had access to higher education, race-conscious admissions policies are needed today to bolster the number of students of color in student Copyright © 2012 by Susannah W. Pollvogt. * J.D., 1998, Yale Law School; B.A., 1994, Williams College. Adjunct Professor, University of Denver, Sturm College of Law. Thanks to Erwin Chemerinsky for feedback on earlier drafts and to my research assistant Sara Hildebrand. 1. Transcript of Oral Argument at 43, Fisher v. Univ. of Tex. at Austin, No. 11-345 (U.S. argued Oct. 10, 2012). 2. No. 11-345 (U.S. argued Oct. 10, 2012). 3. 438 U.S. 265 (1978) (plurality opinion). 4. 539 U.S. 306 (2003). 5. See id. at 328 (comparing remedial justifications and educational justifications for race-conscious admissions policies).