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On Thursday, the U.S. Supreme Court upheld University of Texas at Austin鈥檚 race-conscious admissions policy in its second consideration of a Fisher v. University of Texas appeal. As a reminder, the case stemmed from a lawsuit by Abigail Fisher, a white applicant to UT Austin who claimed she was unfairly rejected due to the university鈥檚 affirmative action admissions program. Since our , when the Supreme Court ordered the U.S. Court of Appeals for the Fifth Circuit to reconsider the case, the appellate court affirmed their decision in favor of UT, and Fisher again appealed that court鈥檚 decision to the Supreme Court. For additional background on this case, please see our previous two posts, found听听补苍诲听.

The case was decided by an unusual 4-3 margin due to Justice Kagan鈥檚 recusal and the recent death of Justice Scalia. According to the听, Justice Kennedy, who had never before voted to uphold an affirmative action plan, wrote for the majority that 鈥溾��it remains an enduring challenge to our nation鈥檚 education system to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity.鈥�

This decision marks the end of the Fisher case, but the debate over affirmative action in higher education carries on.

Stay tuned to the OPBlog for updates.

On Tuesday, the U.S. Supreme Court appeared to be in favor of upholding a Michigan referendum, known as Proposition 2, which banned the use of affirmative action in the state鈥檚 public colleges and universities. The case, , is not about whether it is permissible for public colleges to consider race and ethnicity in admissions, but whether it is legal for voters to bar such consideration. For background information about this case, please see our .

Tuesday’s arguments focused primarily on a piece of the Equal Protection Clause, known as the 鈥減olitical process doctrine,鈥� which states that political processes cannot be altered in a way that puts minorities at a disadvantage. Opponents of Proposition 2, contend that, under the measure, minority groups who want to reinstate affirmative action must launch a difficult and expensive campaign to re-amend the state constitution, whereas Michigan citizens seeking changes to other university admissions policies are free to simply lobby university regents. This, they argue, places an unfair and disadvantageous burden on minorities.

Swing vote, Justice Anthony M. Kennedy, expressed doubts about whether Proposition 2 truly violates the political process doctrine and only two liberal members of the court voiced major criticisms of the Michigan measure. Thus, with Justice Elena Kagan recused from the case, the numbers point toward the court upholding Proposition 2. Such a decision would effectively preserve similar bans adopted by voters in Arizona, California, Nebraska, Oklahoma, and Washington; by lawmakers in New Hampshire; and by the public university governing board in Florida. In addition, it could theoretically embolden campaigns for similar ballot measures
elsewhere.

While it seems clear the Justices will rule in favor of Michigan, it is less clear whether the Justices are interested in reversing the political process doctrine, which dates back more than 40 years. In 1982, for example, the justices ruled against a Washington referendum that attempted to prevent Seattle from using a local busing program to desegregate schools. 听that Michigan Solicitor General, John Bursch, 鈥渦rged the Supreme Court to reverse the Seattle decision and others like it, if necessary.鈥�

We鈥檒l post updates as more information becomes available.

On Monday, the Supreme Court ruled that (UT), the case on UT Austin鈥檚 race-conscious admissions policy, be sent back to an appeals court for further scrutiny.听The case stemmed from a lawsuit by Abigail Fisher, a white applicant to the university who claimed she was unfairly rejected due to UT Austin鈥檚 affirmative action admissions program. For more background on this case, please see our previous two posts, found and .

The court鈥檚 7-to-1 decision did not provide a direct answer about the constitutionality of UT Austin鈥檚 admissions practices. Instead, it ordered the U.S. Court of Appeals for the Fifth Circuit to reconsider the case on the grounds that the appeals court had failed to apply “strict scrutiny” (a rigorous standard requiring that both an important goal and a close fit between means and ends be identified) in its review of the case and subsequent ruling in favor of UT.听Justice Ruth Bader Ginsburg was the only dissenting voice; she argued that the appeals court was right to support UT鈥檚 policies.

According to the , Justice Kennedy wrote for the majority that courts reviewing affirmative action programs must, 鈥渧erify that it is necessary for a university to use race to achieve the educational benefits of diversity.鈥� This necessitates, he said, 鈥渁 careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications.鈥�

The Supreme Court鈥檚 ruling did not displace its 2003 decision in , which found educational diversity to be of sufficient importance to overcome the government鈥檚 standard ban on racial consideration. However, as reports, legal experts believe the court鈥檚 demanding 鈥渟trict scrutiny鈥� requirements will make it difficult for UT and many other institutions to successfully defend their use of race in admissions.

The debates surrounding Fisher v. UT and affirmative action in higher education as a whole are far from over. Many expect the Texas case to return to the Supreme Court after a new review by the appeals court.听 We will keep you posted with any updates.

On October 10th, the U.S. Supreme Court will hear arguments in (UT)鈥攖he first Supreme Court case on the use of race in higher education admissions since Grutter v. Bollinger in 2003. The case asks that the Court either declare UT鈥檚 admissions policy to be in violation of Grutter v. Bollinger or entirely overrule their 2003 decision that race could play a limited role in universities鈥� admissions policies. An overruling of Grutter could effectively end affirmative action at public universities.

Although around 80 percent of UT鈥檚 admissions decisions are made via a unique, race-blind method called the , the case challenges whether UT鈥檚 鈥渉olistic file review鈥� system (which is used to fill the remaining 20 percent of openings) exceeds their right to consider race and ethnicity. Under the holistic file review system, admissions officers and hired readers assess the full application submitted, reading essays and recommendation letters, assessing writing skills, and importantly, seeking to understand the context in which SAT scores and GPAs were earned. Race is one of many contextual factors considered. The UW adopted a race-neutral version of the holistic approach when it became clear, several years after the passage of , that a composite score admissions platform (which essentially scores applicants based on GPA and SAT or ACT scores) insufficiently accommodated diverse applicants. Over time, the UW鈥檚 holistic review, even without a race factor, was found to significantly increase the diversity of entering classes.

In fact, across the country use similar systems to foster diversity in their schools, and many have voiced their avid support for UT. In August, the American Council on Education filed a on behalf of itself and 39 higher education groups backing UT. The Obama administration also filed a UT-supportive , as did a group of U.S. senators, and a number of states (including California, where voters barred public universities from considering race in admissions).

However, last Friday, opponents of UT鈥檚 holistic review caught a break when the Brookings Institute, a nonprofit public policy organization based in D.C., presented suggesting that eliminating the consideration of race would have a lesser impact on minority students than some believe. In addition, their research implies that under affirmative action, minority students may actually achieve less academic success than they would otherwise. The studies received criticism for their methodology and lack of peer-review, but have still caught the attention of the media and public.

Debates will likely continue through next month. If the Court rules in favor of Fisher, the use of holistic review across the country may be called into question, although the UW鈥檚 race-neutral model should be significantly less vulnerable.