Supreme Court will hear new challenge to affirmative action

[Eugene]

Source: USA Today

WASHINGTON -- The Supreme Court handed opponents of affirmative action policies a potential victory Monday by agreeing to hear another challenge to the University of Texas' use of racial preferences in admissions.

The one-line order represents a new chapter in a seven-year dispute initiated when Abigail Fisher, a white applicant, was denied admission to the state university's flagship campus in Austin.

Her case first reached the court in 2012, after she had graduated from an out-of-state school. Rather than ruling for or against the affirmative action plan at the time, the justices sent the case back to a federal appeals court with instructions that it more closely scrutinize the Texas university's admissions policies.

The appeals court -- one of the most conservative in the country -- again sided with the school, prompting Fisher's attorneys to seek the high court's review a second time.

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Read more: http://www.usatoday.com/story/news/nation/2015/06/29/supreme-court-affirmative-action-texas/27676083/

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Richard Wolf, USA TODAY 9:57 a.m. EDT June 29, 2015

[Kber]

1. So by not reviewing the case, they let a lower, conservative case against affirmative action stand

and by reviewing it they may confirm or overturn.

Seems a little early to determine whether this is a loss or not.

[Yupster]

2. Just my own personal opinion of course, but

I think there is now a majority on the court ready to overturn affirmative action.

In today's America, they will not try to justify the government treating people differently based on their race.

I just don't see that happening in 2016 America.

[Kber]

3. Good points

Just like they overturned the civil rights era voting protections.

Probably not a good thing that they are hearing the case now.

[former9thward]

4. If they had let the lower court's decision stand

and not reviewed it would mean it would just affect Texas and a few other states in the jurisdiction. By taking the case they can impose a national standard.

[JustinL]

5. the lower court ruled for the affirmative action program, not against n/t

[bluestateguy]

6. Maybe it's time for this Abby Fisher to move on with her life?

She didn't get into her top choice college. It happens to a lot of people. She went to LSU and graduated. And yet she persists with this.

[B2G]

7. Isn't that a little like saying

that if a gay person was married in a state where it's legal, they should just abandon the fight for it to be legal in all 50 states, because they were able to marry?

[alp227]

8. Exactly

Dallas Observer: It Seems Mediocre Grades, Not Ethnicity, Kept Abigail Fisher Out of UT Austin

Nor did they acknowledge the 168 black and Latino students with grades as good as or better than Fisher's who were also denied entry into the university that year. Also left unsaid is the fact that Fisher turned down a standard UT offer under which she could have gone to the university her sophomore year if she earned a 3.2 GPA at another Texas university school in her freshman year.

I can't imagine Fisher getting much national sympathy or even being heard in court if she were black.

[herding cats]

9. Some more on this for those who dont' fully understand what's at stake here.

It seems unlikely that the justices would have chosen to hear this case again if a majority were satisfied with the Fifth Circuit’s ruling on remand. Most likely, the five more conservative justices decided to take it because they intend to overrule the Fifth Circuit and forcefully reiterate the requirement that judges must not defer to universities on the narrow tailoring issue. The Court could potentially expound on the need to avoid deference on the narrow-tailoring requirement in greater detail than it did in Fisher I, so as to reduce lower court judges’ room for discretion and prevent them from continuing to defer, as the Fifth Circuit essentially did in its post-remand decision. If that happens, supporters of racial preferences in admissions might end up worse off than they would have been if the Fifth Circuit had not chosen to be obstreperous after the remand, and had struck down the Texas program, as many expected it would.

If the Court overrules the Fifth Circuit and strikes down the Texas program, some of the three liberal justices who voted with the majority in Fisher I might defect. But key swing voter Justice Anthony Kennedy has always been highly skeptical of racial preferences, and he seems unlikely to go along with the Fifth Circuit ruling.

For some of my previous posts on Fisher and the issues it raises see here and here. Co-blogger David Bernstein has an an excellent article discussing the implications of the fact that Fisher is the first major affirmative action case where the primary beneficiaries of the challenged program are Hispanics rather than African-Americans.

My wife, Alison Somin, who works for the US Commission on Civil Rights, has published an article assessing the potential impact of Fisher I on affirmative action in higher education.
http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/06/29/fisher-affirmative-action-case-returns-to-the-supreme-court/