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

handle is hein.journals/endnot72 and id is 1 raw text is: 


                      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


     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
     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).

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