Overnight Regulation: Supreme Court split over new affirmative action challenge

Welcome to Overnight Regulation, your daily rundown of news from Capitol Hill and beyond. It’s Wednesday evening here in Washington, and it’s anyone’s guess when we’ll see a spending bill. Until then, here’s the latest.

THE BIG STORY

The Supreme Court appeared closely divided during arguments Wednesday in a case revisiting whether it is constitutional for the University of Texas at Austin to consider race when determining student admission.

The 5th Circuit U.S. Court of Appeals has twice upheld the university policy being challenged by Abigail Fisher, a white woman who was denied admission in 2008. Fisher argues that the school’s use of race violates the equal protection clause under the 14th Amendment because the school already has the top 10 percent plan, which guarantees admission to students who graduate in the top 10 percent of their high school class.

{mosads}Justice Anthony Kennedy questioned why Fisher’s attorney Bert Rein objected to the university’s request to remand the case back to the district court and by doing so denied both Fisher and the court any new perspective that could have been gained from additional fact finding.

“We’re just arguing the same case,” he said. “It’s as if nothing had happened.”

UT argued that race was just one factor in its holistic review of students and that Fisher wouldn’t have been accepted even if she was a minority student because she did not have the academic score needed to get into the school’s highly competitive liberal arts program. Because Fisher went on to attend and graduate from another university, UT further argued that the case should have been dismissed.

Justice Antonin Scalia sparked controversy over comments during the suggesting that minority students may belong in “less-advanced schools.”

“There are those who contend that it does not benefit African­ Americans to get them into the University of Texas where they do not do well, as opposed to having them go to a less­-advanced school, a slower-­track school where they do well,” he said.

Justice Elena Kagan recused herself from Wednesday’s arguments leaving eight justices to rule on the case. She was involved in the case as solicitor general.

If the court is split 4-4 in its decision, the lower court’s ruling in favor of UT will stand.

TOMORROW’S REGS TODAY 

The Obama administration will publish 158 new regulations, proposed rules, notices and other administrative actions in Thursday’s edition of the Federal Register.

Foreign languages: The Department of Defense (DoD) will issue a final rule to establish a National Language Services Corp. It will me made up of U.S. citizens proficient in at least one language in addition to English. NLSC members will respond to federal agencies’ needs for language skills in emergencies. The rule will take effect in 30 days.

Code of conduct: The Department of Treasury’s Bureau of Engraving and Printing is moving forward with a rule to increase the maximum penalty for violating its code of conduct to $5,000. The public has 60 days to comment on the proposed rule.

Seat belts: The Federal Motor Carrier Safety Administration is moving forward with a proposed rule requiring passengers in commercial trucks to use seat belts whenever the vehicle is on a public road.

NEWS RIGHT NOW

Scalia: Maybe black students belong at ‘less-advanced’ schools http://bit.ly/1mbcGnb

Justices divided over affirmative action challenge http://bit.ly/1Nj85WD

United blames Gulf air subsidies for Middle East flight cut – The Hill’s Keith Laing http://bit.ly/1IVw5gE

EPA allies blast ‘speculative’ arguments against climate rule – The Hill’s Tim Cama http://bit.ly/1RaMZzO

Starbucks gift cards, free lunch, time off: How HUD got more employees to respond to survey of feds – The Washington Post http://wapo.st/1QfBPte

Congress approves re-write of K-12 education law – USA Today http://usat.ly/1U4QVAF

Affordable Care Act plan gets 1 million new subscribers – The New York Times http://nyti.ms/1OTVpbl

QUOTE OF THE DAY

“There are those who contend that it does not benefit African­ Americans to get them into the University of Texas where they do not do well, as opposed to having them go to a less­-advanced school, a slower-­track school where they do well,” Justice Antonin Scalia said during oral arguments Wednesday in a case challenging affirmative action. The statement surprised court watchers and sparked criticism on social media.

We’ll work to stay on top of these and other stories throughout the week, so check The Hill’s Regulation page (http://digital-stage.thehill.com/regulation) early and often for the latest. And send any comments, complaints or regulatory news tips our way, tdevaney@digital-stage.thehill.com or lwheeler@digital-stage.thehill.com. And follow us at @timdevaney and @wheelerlydia.

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