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Last week, the Supreme Court heard oral arguments in the much-mooted case of Fisher v. University of Texas at Austin. At issue in the case was whether the University of Texas at Austin’s affirmative action program complied with the stringent legal test the Court set out in Grutter v. Bollinger (2003). Grutter held that the University of Michigan had a sufficiently “compelling state interest” in fostering a diverse student body that it could take race into account in the university admissions process, even if race-based decisions are widely unacceptable in other contexts.
In 2013, when the Supreme Court first considered UTA’s admissions program in Fisher v. University of Texas at Austin, it did not immediately deliver a judgment; rather, it ratcheted up the pressure on UTA by asking the school to come up with strong empirical support for its diversity plan. Little has been done since that time on remand, except to keep in place the admissions program now under attack. In the 2013 case, the Court imposed the strict scrutiny test on UTA, which generally requires an exacting review of the program to see if it falls within the narrow exception to the colorblind tests developed by the court in other cases.
The UTA program has two parts. The first part allows for 75 percent of an entering class at UTA to be composed of students who finish in the top-ten percent of their high-school class. The second part of the program allocates the other 25 percent of the slots to students on a “holistic basis,” in which race can be taken into account along with other non-academic factors.
This first Monday in October raises several cases that might turn the Supreme Court 180 degrees from the last term. If 2014-15 was an unmitigated disaster for conservatives, with Court decisions overturning gay marriage bans in the states and upholding Obamacare’s tax subsidies, 2015-16 presents cases that may bring conservative victories.
These are the cases to watch — but maybe we can start taking bets here on how the cases will come out, which means predicting the all-important desires of Justice Anthony Kennedy, who will no doubt be the decisive fifth vote in all of them.
Fisher v. University of Texas at Austin: Can state universities use an applicant’s race in making admissions decisions? The Court narrowly split in upholding Michigan’s affirmative action plan a decade ago, and Justice O’Connor, who joined the liberals to uphold the use of race, has been replaced by Justice Alito.