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Fisher and Friends: Affirmative Action on SCOTUS Agenda

By Casey C. Sullivan, Esq. | Last updated on

The Court is back from its two week recess and the Justices sure did all their homework over the break, dropping six new decisions on Monday. Tomorrow, they'll sit down and decide what workload to pick up next.

One of the petitions they'll consider, Fisher v. University of Texas at Austin, could have a far reaching impact on affirmative action in education. It would also give the Court a chance to revisit its 2013 ruling in the case, one which was largely criticized for ducking the suit's central issue.

Courts Keep Messing With Texas

The University of Texas uses a dual system to ensure diversity in its entering class. First, the school guarantees admission to the top 10 percent of the state's public school graduates. Since those schools are already largely segregated along racial lines, bringing in the top tier from throughout the state has resulted in a relatively diverse student body, without the use of direct race-conscious preferences. Simultaneously, the school considers race directly, alongside factors such as work experience and community service, as part of its "Personal Achievement Index."

When that dual system was challenged as a violation of the Equal Protection Clause, the Supreme Court found, in a 7-1 ruling, that strict scrutiny should apply and booted the case back to the Fifth Circuit for review. While seeking a "critical mass" of diversity could be legitimate government interest, a court must apply an exacting review as to whether such diversity has been achieved.

Review it the Fifth did. The court reaffirmed Texas's system, finding that the program was narrowly tailored to fixing a lack of diversity in the university. No other program proposed, the court found, could have had as successful a result. Abigail Fisher, who was denied admission in 2008, and has long since finished her college career, again appealed.

Could Fisher Force the Court's Hand?

If the High Court picks up the case for second time, it could have to decide whether any direct racial consideration could withstand strict scrutiny. If Texas's system falls, more schools may have to adopt a proxy system similar to the top ten percent scheme. Many conservative opponents to affirmative action, from the Wall Street Journal to the National Review, have been clamoring for the Court to grant cert. They're hoping that strict scrutiny, applied to school diversity initiatives, will be "strict in theory but fatal in fact."

Taking the case could force some clarity from Justice Kennedy as well. Kennedy, almost always the swing vote in racially conscious admissions cases, has repeatedly said that diversity is a compelling government interest. Yet, he has never actually found a system he could actually support, preferring to send diversity programs back for further tweaks and changes.

He may not be able to wriggle away as easily this time.

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