Are Fisher and Affirmative Action Returning to SCOTUS?

She came, she saw, she got remanded. And now, she'll petition the Supreme Court for another grant of certiorari after the Fifth Circuit once again ruled against her.

Abigail Fisher didn't get into the University of Texas at Austin. Others, who were arguably less qualified, did under the university's "holistic" approach to admissions, which considers race as a positive, but not dispositive factor. She's now lost twice at the Fifth Circuit, so why might the Supreme Court be her best hope?

It's because a handful of justices are really are itching to end affirmative action.

Last Time at SCOTUS

In June 2013, the Supreme Court ruled in Fisher's favor, and remanded the case, holding that the Fifth Circuit was too deferential in its review of the university's admissions program. While a compelling interest in racial diversity is a given (see Bakke, Gratz, and Grutter), the court is supposed to take a close look at the means taken, and whether they are sufficiently narrowly tailored to get there, to survive a proper strict scrutiny analysis.

Instead, the Fifth Circuit deferred to the university's stated goal (diversity) and its means taken (the "holistic" plan) while wrongly placing the onus on Fisher to prove that the plan was unconstitutional.

On Remand in the 5th

This time, the Fifth Circuit, in a 2-1 split, held that the university's two-tiered system was necessary to achieve diversity, that it was no broader than necessary, and that it was similar to those approved previously by the Supreme Court. The UT-Austin plan includes:

• The Top Ten Percent Plan, where the top ten percent of every graduating class out of Texas is guaranteed admission;
• A "holistic" review for the few remaining seats, where a number of factors (race, socioeconomic status, extracurricular activities, etc.) are considered.

Fisher did not get in under the "Top Ten Percent" plan, nor did she survive holistic review.

End is Near?

Fisher v. University of Texas was seen as a possible vehicle for overturning the affirmative action trifecta mentioned above, but in the end, the Court took a more measured approach, kicking the case back to the Fifth Circuit for a more thorough evaluation.

However, as we noted at the time, both Scalia and Thomas wrote separate concurrences practically begging to address and overturn Grutter and its ilk. (The Thomas concurrence was longer than the majority opinion.) Even the majority opinion began by stating, "We take those cases as given for purposes of deciding this case," in large part because neither side asked for Grutter to be overruled, and possibly because the conservative wing didn't want to even give a hint that the cases were still "good" law.

Justices Scalia and Thomas would almost certainly vote for a cert. grant. Alito too. And the consensus seems to be that Chief Justice Roberts wants to end affirmative action once and for all. All they'd need is one more vote. Kennedy just authored a plurality opinion allowing states to ban affirmative action (criticizing past racial preference in schools cases), but has often been seen as a wildcard in this area (as he is in most areas).

This time, Fisher's only legal angle might be to ask for exactly that. And assuming the Fifth Circuit's reasoning was more sound this time around, the Supreme Court, if it takes the case, may not be able to avoid the issue any longer.

Related Resources:

• Fisher v. University of Texas at Austin (Fifth Circuit)
• What Does Sotomayor's 'Beloved World' Mean for Affirmative Action? (FindLaw's U.S. Supreme Court Blog)
• Handicapping the Gay Marriage Race to SCOTUS: 3 Factors (FindLaw's U.S. Supreme Court Blog)