The U.S. Court of Appeals for the Fifth Circuit has twice upheld the Texas policy — once before the Supreme Court examined it in 2013, and once on the orders the Court gave it in that decision. Each time, the Fifth Circuit ruled that the program makes only limited use of race, and serves the university’s interest in a racially and culturally diverse student body in a way that obeys Supreme Court mandates.
In this second time around, Fisher has put forward both a quite modest claim, and a more ambitious — even momentous — claim.
The simpler challenge is that the Fifth Circuit disobeyed the Supreme Court’s 2013 order to reconsider the Texas policy using a rigorous “strict scrutiny” approach. The majority in the two-to-one ruling, the new petition argued, gave the university a pass, allowing it to control the defense of the admissions program on the university’s terms, without the majority boring deeply into the actual use of race. . . .
The case may well turn on the narrow meaning of just how strict “strict scrutiny” really is, in the context of race-conscious affirmative action programs. Fisher’s more interesting substantive claim is that UT-Austin’s affirmative action program cannot survive “true” strict scrutiny because it is not “narrowly tailored” to further the “compelling” government interest in diversity.
More specifically, she asserts that the State of Texas’s “Top Ten Percent Law”–which grants automatic admission to UT-Austin to anyone graduating in the top ten percent of their high school class–is sufficient, alone, to further the University’s goal of achieving racial diversity. But UT-Austin does not stop there; it also additionally considers race as a “plus factor” in its decision whether to admit students who do not graduate in the top ten percent of their class. Is this additional, race-conscious admissions program truly “necessary” to further the university’s interest in having a racially diverse class, or is the race-neutral Top Ten Percent Law sufficient to achieve such racial diversity?
According to Denniston’s post-oral argument analysis:
The case, it would appear, now comes down to three options: kill affirmative action nationwide as an experiment that can’t be made to work, kill just the way it is done at the Texas flagship university because it can’t be defended, or give the university one more chance to prove the need for its policy. . . .
There was no doubt on Wednesday that there are three and probably four Justices who have grown deeply skeptical, if not hostile, to affirmative action in general. That would include, for sure, Justices Samuel A. Alito, Jr., Antonin Scalia, and Clarence Thomas. (Although Thomas did not ask any questions today, his views on the issue are well known.). A fourth could be Chief Justice John J. Roberts, Jr., who openly fretted about whether the time would ever come when race would no longer be used in affirmative action on college campuses. He noted that, twelve years ago, the Court had predicted that there would be no need to use race in college admissions within twenty-five years, but about half of that time is now gone.
Equally, there was no doubt that there are three Justices clearly on the university’s side — Justice Ruth Bader Ginsburg, who would have upheld the plan two years ago and was the lone dissenter in that ruling, and Justices Stephen G. Breyer and Sonia Sotomayor.
As Justice Kagan has recused herself from the case (due to her past involvement in the Solicitor General’s office), the deciding fifth vote–to prevent a 4-4 tie (which would effectively affirm the Fifth Circuit’s opinion)–is once again Justice Anthony Kennedy, who held his cards close during oral argument.