As the Supreme Court enters into its high season, the most pressing case for college admissions is Fisher v. University of Texas at Austin—and it has legal experts predicting a potential seismic change in admission policies. Oral arguments started recently for the Supreme Court, with a ruling on Fisher most likely in springtime. The case is essentially a sequel to a case two years prior, when an usually cohesive voice of the Supreme Court (7-1) sent a message that courts need not be so deferential to college’s affirmative action admissions polices, and signaled that race-based policies were probably outmoded.
By way of background: In 2008, Abigail Fisher was a senior in high school when she sued the University of Texas at Austin when she was not admitted. A white student, she claimed that race should not be a consideration in admissions because there are other means to reach the desired goal of diversity in the student body; in particular, her lawyers pointed out the “10 percent” plan in Texas, where the top ten percent of students are offered admissions, is a viable means to that end.
By 2013, that case worked its way to the Supreme Court, which did not directly rule on the merits, but instead sent the case back to the Appeals Court with some pretty direct instructions that courts should apply a “strict scrutiny” standard when considering these admissions policies—or, said more plainly, that colleges should no longer receive as much deference in their admissions policy as they have and, even more specifically, that college admission policies could consider race as an important element, but had to justify the consideration of race and ethnicity in admissions. Moreover, the 7-1 ruling did send a clear message that lower courts do not need to give colleges deference in reviews of challenges to the consideration of race and ethnicity in admissions decisions—and, with that message, the case was returned to the Fifth Circuit Court of Appeals.
And then how did the lower court respond?
Pretty much affirming their own earlier judgment. A three court panel ruled 2-1 that the University of Texas policy considering race was okay with them, ruling was that the “10 percent” plan which the plaintiff’s attorneys had promoted has weaknesses in that it does not consider the individual, and “perversely” puts in place a quota system, albeit race neutral.
All this has set up a showdown. The Supreme Court is not in the habit of so quickly reconsidering a case, and the current members—or, at least a vocal portion of them—have been a bit testy about having their opinions challenged; having this case volleyed back to them without their 2013 directions being followed potentially sets up some of the justices to be ornery.
What’s more, most observers of the Supreme Court tend to number the justices as supporting affirmative action at only four—and Justice Elena Kagan will need to excuse herself from the case, leaving only what Scott Jaschik from Inside Higher Ed calls three “reliable” backers of affirmative action.
Bottom line: Although the justices could repeat their directions from 2013 that courts need to provide a higher level of scrutiny for affirmative action admission cases, it is more likely that a 5-3 court will set a firm precedent.
In Inside Higher Ed, Rod Smolla, the dean of Widener University Delaware Law School and author of The Constitution Goes to College, is quoted saying he would be surprised if Justice Kennedy backed the University of Texas. “The question in my judgment,” he explained, “is not whether the current principles governing race-conscious admissions will be altered, but rather how much they will be altered.”